Cary v. Hall (associated with Center for Biological Diversity v. Norton)
Court finds that plaintiffs have standing to pursue claim for “informational” injury, where U.S. Fish and Wildlife Service listed antelope species as endangered, but allowed trophy hunting to continue—without calling for individualized permit applications subject to requirement of public notice and comment under the Endangered Species Act.
Status: Originally filed in the U.S. District Court for the Northern District of California, Cary v. Hall was transferred to the District of Columbia, where it is associated with a similar case, Center for Biological Diversity v. Norton (No. 1:04-cv-1660); both are pending.
Discussion & Analysis: In 2005, the U.S. Fish and Wildlife Service listed as “endangered” under the Endangered Species Act (ESA) three species of antelope indigenous to North Africa. At the same time, the Service issue a rule authorizing certain otherwise-prohibited activities that it claimed would enhance propagation or survival of the species, including trophy hunting of captive-bred animals, as well as trade in sport-hunted trophies and in the animals themselves. Various individuals and public interest organizations sued the government (in the California case Cary v. Hall) to block implementation of this exemption, claming violations of the ESA and the National Environmental Policy Act (NEPA). The government responded that plaintiffs lacked standing.
The district court agreed to dismiss two counts of plaintiffs’ complaint for lack of standing: the claim that the rule violated the ESA on its face, and the claim that defendants had violated NEPA by failing to prepare a proper environmental impact statement. Plaintiffs’ evidence of standing for these claims was based on the allegations of an American conservationist whose work concerns wild African populations of the three antelope species. The court determined that the conservationist’s interest in the African populations supported a finding of “injury” for standing purposes. However, the court determined that neither the “causation” nor the “redressability” components of standing were satisfied, finding it to be “just so much speculation” that hunting of the species in the United States under the Service’s regulatory exemption would lead to more hunting in Africa, the geographical focus of the plaintiff-conservationist’s work. Both causation and redressability, the court decided, depended on the unfettered decision-making of third parties not before the court.
While the court declined to find standing on either the substantive ESA claim or the NEPA procedural claim, the court ruled that plaintiffs did have standing to pursue their claim of informational injury under the ESA. The gravamen of this claim, the court said, was that certain ESA provisions limit the Service’s authority to allow otherwise-prohibited activities on a categorical basis, in the absence of an individualized permit application. The court’s analysis here began with a determination that the ESA creates a right to information sufficient to support standing. The court then ruled that the informational injuries alleged by plaintiffs come within the “zone of interests” protected by the ESA. This is because the ESA’s requirement that the Service publish notice of permit applications and make related information available to the public “make[s] meaningful the participation of interested parties in the process of determining whether to allow an otherwise prohibited activity with respect to an endangered species.” Crucial to the court’s reasoning were one plaintiff’s allegations that it “regularly” obtains information from, and makes comments through, the ESA notice-and-comment process for permit applications.
The court’s determination that plaintiffs have standing to pursue their claims for informational injury establishes a strong, recent precedent for finding informational standing under an environmental statute. As such, the Cary v. Hall ruling may help to provide a roadmap for environmental plaintiffs facing difficulties in demonstrating standing for their alleged substantive or procedural harms.
[Note: Soon after ruling on defendants’ motion to dismiss, the California court transferred Cary v. Hall to the District of Columbia, where it has been associated with Center for Biological Diversity v. Norton, an earlier-filed case that raises identical issues.]
Key Opinion: Cary v. Hall, No. C-05-4363-VRW (N.D. Cal. Sept. 20, 2006) (granting in part & denying in part defendants’ motion to dismiss for lack of standing).
See Also: Center for Biological Diversity v. Brennan, 571 F. Supp. 2d 1105 (N.D. Cal. 2007) (finding that environmental plaintiffs have standing to pursue claim for informational injury against the Bush Administration under the Global Change Research Act, based on failure to produce periodic climate change reports expressly required by the Act).
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