The Cetacean Community (Cetaceans), through its self-appointed attorney, appealed dismissal of its complaint against the President of the United States and the Secretary of Defense. Cetaceans alleged violations of the Endangered Species Act (ESA),[1] the Marine Mammal Protection Act (MMPA),[2] and the National Environmental Policy Act (NEPA),[3] by the United States Navy. Cetaceans claimed that the Navy's low frequency active sonar system seriously injured Cetaceans and interfered with their natural activities. The Ninth Circuit affirmed the district court's dismissal.

Cetaceans include "all of the world's whales, porpoises, and dolphins,"[4] on behalf of whom plaintiffs' counsel filed this action to compel defendants to undertake various actions under the ESA, the MMPA, and NEPA. The defendants filed a motion to dismiss for both lack of subject matter jurisdiction[5] and failure to state a claim upon which relief can be granted.[6] The district court granted defendants' motion without stating its basis for dismissal, and also held "that the Cetaceans lacked standing under" the various statutes.[7] Cetaceans appealed, and the Ninth Circuit reviewed the standing issue de novo.

Cetaceans argued that the Ninth Circuit was bound by its prior decision in Palila v. Hawaii Department of Land and Natural Resources (Palila IV),[8] granting legal status to an endangered bird,[9] and that statements to this effect amounted to "a holding that an endangered species has standing to sue to enforce the ESA."[10] The defendants, however, argued that the court's statements were merely dicta, not binding precedent for the Ninth Circuit. In the instant case, the district court ruled that the statements in Palila I were dicta,[11] and the Ninth Circuit agreed, noting that the plaintiffs in Palila IV included "the Sierra Club and others" who clearly had standing and "brought an action under the [ESA] on behalf of the Palila."[12] As a result, the Ninth Circuit decided that its Palila IV ruling did not give standing to endangered species under the ESA and reviewed the issue of standing "as a matter of first impression."[13]

The Ninth Circuit detailed the two-step process required by the Supreme Court to qualify for standing. First, under Article III of the Constitution, a plaintiff must have an injury in fact caused by the defendant that would be likely to be redressed by a favorable decision.[14] Second, if the Article III requirements are met, a court must examine whether the plaintiff has standing under a statute enacted by Congress.[15] The Ninth Circuit stated that "Article III does not prevent Congress from granting standing to an animal by statutorily authorizing a suit in its name,"[16] and went on to consider whether Congress did so in any of the statutes at issue in Cetaceans' complaint: the Administrative Procedure Act (APA),[17] the ESA, the MMPA, and NEPA.

Under section 10(a) of the APA, "[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."[18] The Ninth Circuit, noting that when a statute itself did not grant standing to a plaintiff, the statute may be read through the "gloss" of section 10(a) to give standing, considered the effects of section 10(a) in its analysis of the ESA, the MMPA, and NEPA. The ESA included a citizen-suit provision granting standing to "any person" filing a "civil suit on his own behalf" to address a "violation of any provision of this chapter or regulation."[19] In defining the "person" who may file suit, the court pointed out that the ESA made no mention of species that the statute was intended to protect.[20] Reading the ESA through the gloss of APA section 10(a) did not change the outcome in the court's view: while the APA granted standing to "persons" suffering ill effects of agency actions, the APA definition of "person" was narrow, excluding animals.[21] As a result, the Ninth Circuit held that the ESA did not grant standing to Cetaceans.

The MMPA requires a permit to "harass, hunt, capture, or kill" marine mammals.[22] Under the MMPA, both permit applicants and parties opposing such permits are given standing,[23] but the statute did not mention potential parties, "such as the Cetaceans," attempting to "compel someone to apply for a . . . permit."[24] The Ninth Circuit held that applying APA section 10(a) to the MMPA did not grant standing to Cetaceans, due to the limited definition of "person." As a result, the Ninth Circuit held that Cetaceans lacked "standing to enforce the permit requirement of the MMPA."[25]

Under NEPA, "major federal actions significantly affecting the quality of the human environment" require the preparation of an environmental impact statement (EIS).[26] The Ninth Circuit looked to the Supreme Court holding that NEPA itself did not grant standing for enforcement, but standing may be obtained through the APA.[27] The Ninth Circuit, however, held that it had "see[n] nothing in either NEPA or the APA that would permit us to hold that animals . . . have standing to bring suit on their own behalf."[28]

Finally, Cetaceans argued that if members did not have standing, they were an "association" included in the APA definition of "person,"[29] and therefore entitled to standing. The Ninth Circuit disagreed, citing a Supreme Court holding that associational standing required that the "members would otherwise have standing to sue in their own right,"[30] and reiterating that individual animals did not have standing in this case. The court found no intent by Congress to include non-human groups under the term "association" in the APA. Finding no language in the ESA, the MMPA, NEPA, or the APA granting standing to animals, the Ninth Circuit held Cetaceans had no standing, and affirmed the district court ruling.