                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


                                 )
NEW ENGLAND ANTI-VIVISECTION )
SOCIETY, et al.,                 )
                                 )
           Plaintiffs,           )
                                 )
     v.                          )               Civil Action No. 16-cv-149 (KBJ)
                                 )
UNITED STATES FISH AND           )
WILDLIFE SERVICE, et al.,        )
                                 )
                                 )
           Defendants,           )
                                 )
     and                         )
                                 )
YERKES NATIONAL PRIMATE          )
RESEARCH CENTER,                 )
                                 )
           Intervenor-Defendant. )
                                 )


                              MEMORANDUM OPINION

       The question of who can speak for the animals has long vexed federal judges in

animal-welfare cases. As a general matter, courts have concluded that well -established

principles of Article III standing permit “human beings [to] invoke their own injuries in

fact to challenge harms done to animals[,]” Cass R. Sunstein, Standing For Animals

(With Notes On Animal Rights), 47 UCLA L. Rev. 1333, 1343 (2000), but it can be

“exceptionally confusing” to apply settled standing doctrine to determine when and

under what circumstances an act that is allegedly harmful to animals works a cognizable

injury in fact to human plaintiffs, id. at 1334. In the instant case, a consortium of
organizations and individuals led by the New England Anti -Vivisection Society

(“NEAVS”), a non-profit organization that dedicates itself to animal -welfare issues, has

claimed the right to file a lawsuit against the United States Fish and Wildlife Service

(“FWS”) and its Director Daniel Ashe (collectively, “Defendants”) to seek to enjoin the

agency’s grant of a certain wildlife export permit.

       Specifically, Plaintiffs object to FWS’s decision to permit Intervenor -Defendant

Yerkes National Primate Research Center (“Yerkes”) to transfer eight of its

chimpanzees to a zoo in the United Kingdom; the agency has authorized this act of

exportation pursuant to Section 10 of the Endangered Species Act ( “ESA”), 16 U.S.C.

§§ 1531–1544, on the condition that Yerkes commit to donating money to an unrelated

non-governmental organization that purportedly will use the funds for a chimpanzee

conservation program. Plaintiffs complain, inter alia, that the agency’s decision to

issue an export permit under these circumstances violates certain fundamental tenets of

the ESA, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551–559, 701–706,

the National Environmental Policy Act (“NEPA”), 42 U.S.C. § § 4321–4370h, and the

Convention on International Trade in Endangered Species (“CITES”), 27 U.S.T. 1087

(Mar. 3, 1973). (See Am. Compl. (“Compl.”), ECF No. 6, ¶¶ 145–161.)) Among

Plaintiffs’ myriad objections to this particular permit arrangement is the ir contention

that the plain language of the ESA prohibits FWS from establishing this sort of ‘pay-to-

play’ export permitting scheme, which, Plaintiffs say, at best inures to the benefit of

endangered species only indirectly. (See id. ¶ 4 (asserting that Section 10 of the ESA

“requires that the permitted activity itself ‘enhance the survival’ of the chimpanzee

species” (emphasis in original)).) Plaintiffs also contend, inter alia, that FWS




                                             2
purportedly failed “to consider the adverse impacts of its decision on efforts to conserve

chimpanzees in the wild,” and “to consider the precedential effect its decision will have

on the disposition of other captive chimpanzees[.]” (Id. ¶ 5.)

        Before this Court at present are three partial cross -motions for summary

judgment that Plaintiffs, FWS, and Yerkes have now filed. (See Pls.’ Mot. for Partial

Summ. J. (“Pls.’ Mot.”), ECF No. 39; Defs.’ Mot. for Partial Summ. J. (“Defs.’ Mot.”),

ECF No. 44; Def.-Intervenor’s Cross-Mot. for Summ. J. (“Yerkes’s Mot.”), ECF No.

42). 1 Plaintiffs focus primarily on the alleged harm to the chimpanzees at issue

(Plaintiffs believe they would be far better off if they were sent to a sanctuary within

the United States rather than “an unaccredited zoo” overseas (Pls. ’ Mem. in Supp. of

Pls.’ Mot. (“Pls.’ Mem.”), ECF No. 39-1, at 9)), and they suggest that FWS’s export-

permit decision not only violates the ESA but also injures endangered species as a

whole because, in Plaintiffs’ view, it was “Congress’s stated intention to limit

substantially the number of exemptions that may be granted ” under Section 10 of the

ESA, and that intent is “completely eviscerated by allowing applicants to simply buy

Section 10 permits by promising to contribute money to someone else” ( id. at 32

(emphasis altered) (citation omitted)). 2 Plaintiffs also argue that the permit hurts

NEAVS in various ways, including “mak[ing] it impossible for NEAVS to advocate for

the release of these . . . chimpanzees to a U.S. sanctuary” ( id. at 49–50 (citation

omitted)), and that three of the individual plaintiffs—all of whom are former Yerkes



1
 These motions are for “partial” summary judgment because they do not address a count of the
complaint that has been brought under the Freedom of Informa tion Act, 5 U.S.C. § 552 et seq. (See
Compl. ¶162.)
2
 Page-number citations to the documents the parties have filed refer to the page numbers that the
Court’s electronic filing system automatically assigns.


                                                   3
employees who allegedly have formed “strong emotional bonds with these animals” (id.

at 50 (citations omitted))—will suffer too if these chimpanzees are exported to England.

For their part, FWS and Yerkes defend the agency’s decision to issue the export permit

on the merits, asserting that Section 10(a) is a “broad grant of discretion” that “allows

for and does not preclude enhancement [of the species] by indirect means.” (Defs.’

Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 44 -1, at 30–31; see also

Yerkes’s Mot. at 23–35.) Defendants also maintain that this Court lacks subject -matter

jurisdiction over the instant action as a threshold matter, because, in their view, none of

the plaintiffs have Article III standing to seek a court order setting aside the permit.

(Defs.’ Mem. at 20–30.)

       For the reasons explained fully below, this Court finds that Defendants have the

better of the standing dispute. Despite the fact that Plaintiffs have presented a series of

persuasive arguments regarding the meaning of the ESA and the extent to which FWS’s

interpretation undermines the goals and purposes of that statute, recent D.C. Circuit

case law compels this Court to conclude that Article III requires something more than a

potentially meritorious challenge to imprudent government action involving endangered

animals: Plaintiffs themselves must have a concrete and particularized injury in fact that

is actual or imminent, that is fairly traceable to Defendants’ actions, and that a federal

court’s decision can redress. This Court concludes that Plaintiffs have not satisfied

these threshold requirements under binding law regarding Article III standing in

animal-welfare and environmental-law cases, and therefore, the Court is constrained to

refrain from passing on the merits of Plaintiffs’ arguments or granting them the relief

they seek. See Scenic Am., Inc. v. U.S. Dep’t of Transp., No. 14-5195, 2016 WL




                                             4
4608153, at *3 (D.C. Cir. Sept. 6, 2016) (“Observing our Article III limitations is . . .

always important, and particularly so in a case such as this, where we are asked to

invalidate an action of the Executive branch.”). Consequently, Defendants’ and

Yerkes’s partial motions for summary judgment must be GRANTED, Plaintiffs’ partial

motion for summary judgment must be DENIED, and the claims at issue herein must be

dismissed. A separate order consistent with this Memorandum Opinion shall issue.


I.     BACKGROUND

       A.     The Listing Of Chimpanzees As Endangered Species Under The ESA

       The ESA has been called “the most comprehensive legislation for the

preservation of endangered species ever enacted by any nation.” Babbitt v. Sweet Home

Chapter of Cmtys. For a Great Or., 515 U.S. 687, 698 (1995) (internal quotation marks

and citation omitted). The statute aims to conserve the populations and habitats of

certain species, see 16 U.S.C. § 1531(b), and it accomplishes this by, among other

things, authorizing the Department of the Interior to determine if a species is

“endangered[,]” because it is “in danger of extinction throughout all or a si gnificant

portion of its range[,]” id. § 1532(6), or is “threatened[,]” insofar as it is “likely to

become an endangered species within the foreseeable future[,]” id. § 1532(20). See

also id. § 1533(a). “The Department of the Interior administers the ESA for non-marine

species and has delegated to the Fish and Wildlife Service (an agency within the

Interior Department) the authority to list such species as ‘endangered’ or ‘threatened’

through rulemaking.” Otay Mesa Prop., L.P. v. U.S. Dep’t of the Interior, 144 F. Supp.

3d 35, 40 (D.D.C. 2015) (citing, inter alia, 50 C.F.R. § 402.01 (2015)).




                                               5
       FWS has listed chimpanzees as a protected animal species for ESA purposes

since 1976. See Determination of 26 Species of Primates as Endangered or Threa tened

Species, 41 Fed. Reg. 45990, 45990 (Oct. 19, 1976); Endangered and Threatened

Wildlife and Plants; Listing All Chimpanzees as Endangered Species (“Chimpanzee

Final Rule”), 80 Fed. Reg. 34500, 34500 (June 16, 2015). Beginning in 1990, the

agency “[s]plit-[l]ist[ed]” chimpanzees (Pls.’ Mem. at 13) based upon whether the

animals at issue were wild or captive; wild chimpanzees were considered endangered,

and captive chimpanzees were deemed threatened. See Chimpanzee Final Rule, 80 Fed.

Reg. at 34500. Under the ESA, these different designations resulted in the application

of different constraints on public and private actions that might impact the species.

Compare 16 U.S.C. § 1538(a)(1) (banning a host of activities only with respect to

endangered species), with id. § 1533(d) (authorizing—but not requiring—the Executive

to apply the protections found in § 1538(a)(1) to “any threatened species” via

regulation).

       In 2015, after years of intensive lobbying by animal -welfare organizations, FWS

eliminated the dichotomy between wild and captive chimpanzees, deeming all

chimpanzees “endangered” within the meaning of the ESA. (Pls.’ Mem. at 13–14;

Defs.’ Mem. at 13); see also Chimpanzee Final Rule, 80 Fed. Reg. at 34500. For

present purposes, this designation was particularly consequential because Section 9 of

the ESA categorically prohibits the export of endangered species, among other things.

See 16 U.S.C. § 1538(a)(1)(A) (providing that, “with respect to any endangered species

of fish or wildlife” that has been listed as such, “it is unlawful for any person subject to

the jurisdiction of the United States” to “export any such species from the United




                                             6
States”). 3 But this export proscription is also subject to certain specified exceptions:

Section 10 (titled “Exceptions”) establishes the circumstances under which the

Secretary is authorized to permit the activities that Section 9 prohibits. See 16 U.S.C.

§ 1539.

          In pertinent part, the text of Section 10(a)(1) reads, as follows:

          (a) Permits.

             (1) The Secretary may permit, under such terms and conditions as he shall
           prescribe—
                    (A) any act otherwise prohibited by [Section 9] for scientific purposes
                or to enhance the propagation or survival of the affected species , including
                but not limited to, acts necessary for the establishment and maintenance of
                experimental populations[.]

16 U.S.C. § 1539(a)(1)(A) (emphasis added). Under Section 10(c), the Secretary is

required to “publish notice in the Federal Register of each application for an exemption

or permit which is made under this section[.]” Id. § 1539(c). And Section 10(c)

mandates both that the Secretary’s notice must “invite the submission from interested

parties, within thirty days after the date of the notice, of written data, views, or

arguments with respect to the application[,]” and also that “[i]nformation received by

the Secretary as a part of any application shall be available to the public as a matter of

public record at every stage of the proceeding.” Id. In addition, pursuant to Section

10(d), FWS may not grant a permit to authorize otherwise-prohibited acts with respect

to endangered species unless it publishes in the Federal Register a finding that the

“exceptions were applied for in good faith,” that they “will not operate to the




3
    Applicable regulations also recognize this ba n on exports. See 50 C.F.R. § 17.21(b).


                                                      7
disadvantage of [the] endangered species,” and that issuing the permit “will be

consistent with the purposes and policy” of the ESA. Id. § 1539(d).

        B.      FWS’s Approval Of Yerkes’s Export-Permit Application

        On June 12, 2015, Yerkes—a research laboratory associated with Emory

University (Yerkes’s Mot. at 36)—requested that FWS grant it permission under CITES

to export eight chimpanzees that Yerkes owns to the Wingham Wildlife Park

(“Wingham”) in England. (See CITES Permit Application, AR 000012.) 4 Yerkes’s

staff had purportedly “spent significant time” in 2013 and 2014 “conducting an

extensive due diligence review of Wingham’s facility, staff, mission, and plans,”

including site visits (id. at 15 (citation omitted)), and in December of 2014, Yerkes

“signed an agreement to donate to Wingham eight chimpanzees, all of which were bred

and born at [Yerkes’s] facilities” (id. (citation omitted)). 5 When FWS decided (in June

of 2015) to list captive chimpanzees as an endangered species, Yerkes was forced to

have to seek an exemption from Section 9’s export prohibition in order to execute the

Wingham agreement. (See id. at 17 (explaining that Yerkes amended its CITES permit

request “to include a request for a permit under the ESA following the ‘uplisting’ of

captive chimpanzees to endangered status” (citation omitted))).


4
 The voluminous Administrative Record has not been filed on the ECF docket; as explained in their
Notice of Filing, Defendants have filed the certified Administrative Record index on the docket and
have supplied the full panoply of documents via a USB flash drive delivered to the Court. (See Notice
of Filing of Supplemented Admin. R. Index, ECF No. 52, at 1.)
5
  According to Yerkes, Wingham is “home to 200 species and more than 650 animals ,” and is “a
licensed zoo” that “is required to meet the Standards of Modern Zoo Practice[.]” (Yerkes’s Mot. at 14
(footnote omitted).) Plaintiffs counter that “Wingham is not accredited by either the European
Association of Zoos and Aquaria . . . or the British & Irish Association of Zoos and Aqua riums[.]”
(Pls.’ Mem. at 14–15.) Plaintiffs also assert that Wingham “has never housed, cared for, or displayed
chimpanzees[.]” (Id. at 15). This dispute of fact regarding Wingham’s standards and capabilities need
not be resolved because, regardless, alleged harm to an animal, in and of itself, is not a sufficient injury
to support a legal action in federal court. See ASPCA v. Ringling Bros. & Barnum & Bailey Circus , 317
F.3d 334, 336–37 (D.C. Cir. 2003).


                                                     8
      After Yerkes finished supplementing its application to include the ESA permit

request, FWS published the required Section 10(c) notice. See Endangered Species;

Wild Bird Conservation; Marine Mammals; Receipt of Applications for Permit

(“Original 10(c) Notice”), 80 Fed. Reg. 62089, 62091 (Oct. 15, 2015). According to

documents in the record, Yerkes originally hoped to satisfy Section 10(a) by making

financial commitments to two organizations that conduct “programs that focus on

benefits to wild populations of chimpanzees.” (Supplement to Yerkes Permit Request,

AR 000257.) One of those organizations apparently opposed Yerkes’s attempted export

and rejected its donation once that organization discovered the full import of the action

(see Letter from Kibale Chimpanzee Project to Wingham, AR 000355–57); the record is

less pellucid with respect to the second, but it appears that organization also “withdrew

its interest in receiving the donation.” (Decl. of R. Paul Johnson (“Johnson Decl.”), Ex.

C. to Yerkes’s Mot., ECF No. 42-9, ¶ 20.) Many other conservation groups and

conservationists—including Plaintiffs—also objected. (See Pls.’ Mem. at 16–20.)

      Then, on November 27, 2015, FWS informed NEAVS that (1) “there ha[d] been

a shift in the organization and amount” of Yerkes’s donation—Yerkes would now

donate “$45,000 per year for five years to the Population & Sustainability Network

[(“PSN”),]” and (2) the export permit would be granted to Yerkes within ten days.

(FWS Email to NEAVS, AR 001359–60.) Three days later, Plaintiffs filed a lawsuit

against FWS that challenged the permitting decision (see Pls.’ Mem. at 22), and raised

essentially the same claims that are before this Court at present, see Compl. ¶¶ 84–95,

New England Anti-Vivisection Soc’y v. Jewell, No. 15-cv-2067 (D.D.C. filed Nov. 30,

2015), ECF No. 1. Because the recipient shift occurred after the relevant comment




                                            9
period had closed, see Original 10(c) Notice, 80 Fed. Reg. at 62089, FWS elected to

reopen the comment period “to allow the public the opportunity to review additional

information submitted for the issuance of [the] permit[,]” Endangered Species; Receipt

of Application for Permit, 81 Fed. Reg. 3452, 3452 (Jan. 21, 2016) , and, as a result,

Plaintiffs dismissed that other case (see Compl. ¶ 96). The new comment period

subsequently closed, and FWS again decided (over strenuous objection from Plaintiffs

and others (see Pls.’ Mem. at 22–28) to grant the permit (see Issued Permit, AR

049927–35).

       FWS made a number of findings in connection with its decision to issue the

export permit to Yerkes. (See, e.g., Enhancement Finding, AR 049912–14; NEPA

Statement, AR 049915–18; Section 10(d) Finding, AR 049919–20.) The agency

explained, for example, that it viewed Yerkes’s application as “an application . . . for

the exportation of [the chimpanzees] for the purpose of enhancing the survival of the

species in the wild.” (Enhancement Finding, AR 049912.) Moreover, and significantly

for present purposes, FWS specifically found that “this action [would] enhan ce the

survival of the species” (id. AR 049914) not because the permitted action itself (i.e.,

sending these chimpanzees to Wingham) would accomplish this result, but because of

the donation to PSN, which is a United Kingdom-based English non-governmental

organization that “works at the intersection of sustainability, human health, and

population dynamics to conserve biodiversity around the world” ( id. AR 049912; see

also Section 10(d) Finding, AR 049920 (“[FWS] determined that the export of the

chimpanzees would enhance the propagation or survival of the species.”)) . FWS

explained that PSN had promised to use the funds to “initiat[e] a new . . . program




                                            10
specifically focused on how [the above-described] factors can be addressed to

ameliorate current risks, such as habitat destruction and disease, which face wild

chimpanzees in East Africa.” (Enhancement Finding, AR 049912.) FWS also

proceeded to find that the export-permit process complied with Section 10(d)’s

requirement that the permit was applied for in good faith and would not “operate to the

disadvantage of chimpanzees within [their] natural range.” (Section 10(d) Finding, AR

049920.)

        The agency published notice of the Section 10(d) finding in the Federal Register

on May 5, 2016. See Endangered Species; Marine Mammals; Emergency Exemption;

Issuance of Permits, 81 Fed. Reg. 27170, 27170 (May 5, 2016).

        C.      Procedural History

        Meanwhile, on January 29, 2016—during the pendency of the second comment

period related to Yerkes’s permit application—NEAVS filed a single-issue complaint in

this Court, alleging that FWS had violated the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552 et seq., because it “ha[d] failed in a timely ma[nn]er to release all of the

information to which NEAVS [was] entitled” pursuant to two FOIA requests the

organization had made in late 2015. (Compl. (“Original Compl.”), ECF No. 1, ¶¶ 1,

34.) After the second comment period closed and FWS made its final decision to grant

Yerkes’s export-permit application, NEAVS amended its complaint to add five other

animal-rights organizations, four individuals, and “Georgia,” one of the affected

chimpanzees. (See generally Compl.). 6


6
 The entire group of plaintiffs consists of NEAVS, Fauna Foundation, Primate Rescue Center, Chimps,
Inc., Jungle Friends Primate Sanctuary, Cruelty Free International, Jennifer Feuerstein, Brian A. Hare,
Rachel Weiss, Mary Lee Jensvold, and Georgia the chimpanzee. (See generally Compl.)



                                                  11
        The amended complaint also attacked the agency’s permitting decision on

several additional grounds. (See id. ¶¶ 145–61.) In brief, Plaintiffs claimed that (1)

FWS’s actions were not in accordance with the ESA and its implementing regulations,

and thus violated the APA (see id. ¶¶ 145–53 (Count I)); (2) FWS had transgressed

Article III of CITES (see id. ¶¶ 154–55 (Count II)) 7; (3) FWS had failed to comply with

certain NEPA assessment-related requirements (see id. ¶¶ 156–57 (Count III)) 8; and (4)

FWS’s permitting officer and other agency officials had acted in various inappropriate

ways that amounted to arbitrary and capricious decisionmaking in violation of the

APA’s bedrock principles (see id. ¶¶ 158–61 (Count IV)). The amended complaint also

persisted with the aforementioned FOIA claim. (See id. ¶ 162 (Count V).)




7
  CITES “is a multilateral treaty that regulates the international trade of protected wildlife[.]” Friends
of Animals v. Ashe, No. 15-0653, 2016 WL 1170937, at *1 (D.D.C. Mar. 24, 2016); see also
Castlewood Prods., L.L.C. v. Norton, 365 F.3d 1076, 1078–79 (D.C. Cir. 2004). Article III of that
treaty provides, among other things, that export permits may only be granted when the “Scientific
Authority of the State of export has advised that such export will not be detrimental to the survival of
that species” and the “Management Authority of the State of export is satisfied that any living specimen
will be so prepared and shipped as to minimize the risk of injury, damage to health[,] or cruel
treatment” and that an “import permit has been granted for the specimen.” CITES, art. III, ¶ 2(a), (c)–
(d). Subdivisions of FWS serve as this country’s Scientific and Management Authorities. See Marcum
v. Salazar, 694 F.3d 123, 125 (D.C. Cir. 2012).
8
  The NEPA is “a ‘procedural statute’ that is designed to ensure that federal agencies make fully
informed and well-considered decisions.” Otay Mesa, 144 F. Supp. 3d at 43 (internal quotation marks
and citation omitted). The statute requires agencies “‘to the fullest extent possible’ to prepare an
environmental impact statement (‘EIS’) in ‘every recommendation or report on proposals for legislati on
and other major Federal actions significantly affecting the quality of the human environment[.]” Safari
Club Int’l v. Jewell, 960 F. Supp. 2d 17, 32 (D.D.C. 2013) (alteration in original) (quoting 42 U.S.C.
§ 4332(C)). No EIS is required if the agency conducts “a shorter environmental assessment (EA)” and
finds “that the proposed action will not have a significant impact on the environment[.]” Id. (internal
quotation marks and citation omitted). But if a “categorical exclusion” applies —a term that describes
“a category of actions which do not individually or cumulatively have a significant effect on the human
environment and which have been found to have no such effect in procedures adopted by a Federal
agency in implementation of [applicable] regulati ons[,]” 40 C.F.R. § 1508.4—an agency need perform
neither an EIS nor an EA, see Safari Club, 960 F. Supp. 2d at 32. With respect to the Yerkes permit,
FWS also found that, under the NEPA, a categorical exclusion applied to its permit grant, and no
extraordinary circumstances, see 40 C.F.R. § 1508.4; 43 C.F.R. § 46.215, that would bar such an
exclusion were present. (See NEPA Statement, AR 049915–18.)



                                                   12
         On April 27, 2016, Yerkes requested permission from this Court to intervene in

this lawsuit as a defendant (see Consent Mot. to Intervene, ECF No. 9); the Court

granted Yerkes’s request on April 29, 2016 (see Mem. Op. & Order, ECF No. 15).

Thereafter, Plaintiffs filed a motion for a preliminary injunct ion that sought to enjoin

execution of the permitted activity pending final resolution of the case. (See Pls.’ Mot.

for Preliminary Injunction (“P.I.”), ECF No. 18, at 1.) This Court held a hearing on

Plaintiffs’ P.I. motion on May 24, 2016 (see Order, ECF No. 27), after which the Court

denied the motion as moot in light of Yerkes’s agreement to suspend its transfer of the

chimpanzees voluntarily in order to permit the matter to be briefed as cross -motions for

summary judgment and decided with the benefit of a full administrative record (see id.

at 1).

         Plaintiffs filed their cross-motion for summary judgment on July 8, 2016. In

their memorandum in support of the motion, Plaintiffs home in on a subset of the claims

in their wide-ranging complaint. For example, Plaintiffs specifically argue that Section

10 of the ESA does not authorize FWS’s permitting decision, insofar as that section

requires (and FWS failed to find) that the permitted act itself enhance the propagation

or survival of the species. (See Pls.’ Mem. at 29–33.) Additionally, Plaintiffs assert

that, even if the ESA permits FWS’s interpretation, FWS unlawfully delegated its duty

to make the enhancement finding to a third party (see id. at 33–36); that the grant of the

permit somehow violates the consultation requirement in Section 7(a) of the ESA (see




                                            13
id. at 45 n.34) 9; and that FWS failed to comply with the APA’s mandate regarding

reasoned decisionmaking because the agency improperly disregarded certain public

comments (see id. at 36–38). Plaintiffs also contend that the NEPA’s requirement that

the agency conduct an environmental impact assessment and produce the corresponding

statement applied to the permit determination, because the categorical exclusion is

inapplicable, either on its own terms or because extraordinary circumstances apply. (Id.

at 38–45.) 10

        Defendants’ cross-motion for summary judgment, which was filed August 4,

2016, not only challenges Plaintiffs’ claims on the merits, it also contends that this

Court lacks subject-matter jurisdiction because Plaintiffs lack Article III standing to

maintain this lawsuit. (See generally Defs.’ Mem.) In this regard, Defendants assert

that the informational, organizational, and aesthetic injuries upon which Plaintiffs rely

for standing (discussed at length in Part III) do not constitute actual or imminent

injuries in fact (see id. at 19–30). Yerkes spends most of its cross-motion memorandum

attempting to defend the rationality of FWS’s conclusion that a sizable monetary

donation to an organization that supports (human) family planning and reproductive

health services will benefit chimpanzees as a species (see, e.g., Yerkes’s Mot. at 24–25,




9
  Section 7(a)(2) “provides that a federal agency must consult with agencies the Secretaries of
Commerce and the Interior designate in order to ‘insure that any action authorized, funded, or carried
out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or
threatened species.’” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 664, 649 (2007)
(alteration in original) (quoting 16 U.S.C. 1536(a)(2)).
10
  As Defendants point out, Plaintiffs make no summary judgment arguments related to the complaint’s
contention that Defendants have violated Article III of CITES. (See Defs.’ Mem. at 50). And given
that Plaintiffs also fail to make any such argument in their reply brief, the Court deems this claim
abandoned. See Pub. Emps. for Env’tl Responsibility v. Beaudreau , 25 F. Supp. 3d 67, 129 (D.D.C.
2014); Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995) (“[A]n issue raised in the
complaint but ignored at summary judgment may be deemed waived.”).


                                                   14
36–41), but Yerkes also generally agrees with Defendants that, in any event, Plaintiffs

have failed to assert an injury in fact that FWS’s action caused and that will likely be

remedied if Plaintiffs prevail (see id. at 49–54).


II.    LEGAL STANDARDS

       As noted above, Plaintiffs’ complaint asks this Court to set aside FWS’s decision

to issue an export permit to Yerkes on a variety of grounds. (See Compl. ¶¶ 145–161.)

The motions at issue here are styled as motions for summary judgment under Rule 56 of

the Federal Rules of Civil Procedure; however, “in cases involving review of a final

agency action[,] . . . the standard set forth in [Rule 56] does not apply because of the

limited role of a court in reviewing the administrative record.” Otsuka Pharm. Co. v.

Burwell, No. 15-1688, 2016 WL 4098740, at *6 (D.D.C. July 28, 2016) (alterations in

original) (internal quotation marks and citation omitted). Rather, the Court “act[s] as

an appellate tribunal[.]” XP Vehicles, Inc. v. U.S. Dep’t of Energy, 156 F. Supp. 3d

185, 191 (D.D.C. 2016) (first alteration in original) (internal quotation marks and

citation omitted). Thus—assuming the court has jurisdiction to review the claims

brought in the case—the court’s function is “solely ‘to determine whether or not as a

matter of law the evidence in the administrative record permitted the agency to make

the decision it did.’” Otsuka Pharm., 2016 WL 4098740, at *6 (quoting ViroPharma,

Inc. v. Hamburg, 916 F. Supp. 2d 76, 79 (D.D.C. 2013)). That task includes ensuring

that the agency action was not “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A).

       As always, however, before the court can render a decision on the merits of a

plaintiff’s challenge to agency action, it must first satisfy itself that it has jurisdiction



                                              15
over the plaintiff’s claims because the plaintiff who seeks the court’s assistance meets

the “irreducible constitutional minimum of standing[.]” Bennett v. Spear, 520 U.S. 154,

167 (1997) (internal quotation marks and citation omitted); see also Scenic Am., 2016

WL 4608153, at *3–4. Standing doctrine “helps preserve the Constitution’s separation

of powers and demarcates ‘the proper—and properly limited—role of the courts in a

democratic society[,]’” Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1279

(D.C. Cir. 2012) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)), and thus, must

not be viewed as a “troublesome hurdle to be overcome if possible so as to reach the

‘merits’ of a lawsuit which a party desires to have adjudicated[,]” Valley Forge

Christian Coll. v. Ams. United for Separation of Church an d State, Inc., 454 U.S. 464,

476 (1982). Pursuant to our Constitution, the role of the federal courts “is to redress or

prevent actual or imminently threatened injury to persons caused by private or official

violation of law[,]” and “[e]xcept when necessary in the execution of that function,

courts have no charter to review and revise legislative and executive action.” Summers

v. Earth Island Inst., 555 U.S. 488, 492 (2009) (citation omitted). Accordingly, and as

a general matter, the threshold inquiry for any federal court is whether the plaintiff has

alleged, and ultimately proven, “such a personal stake in the outcome of the

controversy as to warrant [the] invocation of federal-court jurisdiction.” Id. at 493

(emphasis added) (internal quotation marks and citation omitted); cf. Lin-Manuel

Miranda, The Room Where it Happens, on Hamilton (Atlantic Records 2015) (“[Y]ou

don’t get a win unless you play in the game.”).

       The three essential elements of Article III standing are by now well established.

The Constitution requires:




                                            16
       (1) that the plaintiff have suffered an “injury in fact”—an invasion of a
       judicially cognizable interest which is (a) concrete and particularized
       and (b) actual or imminent, not conjectural or hypothetical; (2) that there
       be a causal connection between the injury and the conduct complained
       of—the injury must be fairly traceable to the challenged action of the
       defendant, and not the result of the independent action of some third
       party not before the court; and (3) that it be likely, as opposed to merely
       speculative, that the injury will be redressed by a favorable decision.

Bennett, 520 U.S. at 167 (citation omitted). It is axiomatic that the party that invokes

federal jurisdiction has the burden of establishing these elements, and as relevant here,

it is also clear that, “at the summary judgment stage, such a party can no longer rest on

mere allegations, but must set forth by affidavit or other evidence specific facts” that

support his claim of injury, causation, and redressability. Fed. Forest Res. Coal. v.

Vilsack, 100 F. Supp. 3d 21, 34 (D.D.C. 2015) (quoting Clapper v. Amnesty Int’l USA,

133 S. Ct. 1138, 1148–49 (2013) (internal quotation marks omitted)); see also Bennett,

520 U.S. at 168 (noting that, at summary judgment, the motion-to-dismiss practice of

“presum[ing] that general allegations embrace those specific facts that are necessary to

support the claim” no longer applies (internal quotation marks and citation omitted)).

       Furthermore, when it evaluates whether or not a plaintiff has Article III standing,

the court must not “decide . . . for or against the plaintiff” on the merits of his claims,

In re Navy Chaplaincy, 534 F.3d 756, 760 (D.C. Cir. 2008) (internal quotation marks

and citation omitted); rather, the court must “assume that on the merits the plaintiffs

would be successful in their claims.” Id. (emphasis added) (internal quotation marks

and citation omitted); see also Parker v. District of Columbia, 478 F.3d 370, 377 (D.C.

Cir. 2007). And while standing is not entirely precluded if “the plaintiff is not himself

the object of the government action or inaction he challenges, ” there is no question that

“it is ordinarily substantially more difficult to establish.” Fed. Forest Res. Coal., 100



                                             17
F. Supp. 3d at 34 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)

(internal quotation marks omitted)); see also Food & Water Watch v. Vilsack, 808 F.3d

905, 914 (D.C. Cir. 2015).


III.   ANALYSIS

       This case begins and ends with the Article III standing inquiry. Plaintiffs insist

that they are entitled to bring this challenge to the export permit that FWS has granted

to Yerkes because they have suffered (or imminently will suffer) various inju ries in fact

as a result of this permitting decision. To support this contention, which is essential to

establishing standing and thus this Court’s subject-matter jurisdiction, Plaintiffs offer

three separate theories of injury: (1) that all of the plaintiffs have suffered an

“informational” injury, because FWS failed to collect and provide information about the

nature and scope of the PSN project prior to authorizing the export (see Pls.’ Mem. at

46–48); (2) that NEAVS’s organizational interests will be injured (i.e., it has

“organizational” standing), because the permit runs contrary to NEAVS’s goals and it

will spend money in response (see id. at 48–50); and (3) that some of the plaintiffs

(three of the individuals) have suffered or soon will suffer an “aesthetic” injury based

on their personal concern for the particular chimpanzees at issue ( see id. at 50–53).

Unfortunately for Plaintiffs, each of these standing theories founders under existing

precedents that bind this Court, and thus, the Court is compelled to conclude that no

plaintiff has demonstrated a concrete or particularized injury in fact that is actual or

imminent, as explained below.

       A.     Plaintiffs Have Not Demonstrated That They Have A Cognizable
              Informational Injury

       An informational injury can occur when a plaintiff is deprived of information


                                             18
that a statute entitles him to have. See Zivotofsky v. Sec’y of State, 444 F.3d 614, 618

(D.C. Cir. 2006) (“Any[] [FOIA requester] whose request for specific information has

been denied has standing to bring an action . . . . The requester is injured-in-fact for

standing purposes because he did not get what the statute entitled him to receive.”

(some citations omitted) (citing, inter alia, FEC v. Akins, 524 U.S. 11, 23–25 (1998));

see also Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 97 (D.D.C. 2000) (explaining

that “[i]nformational standing arises ‘only in very specific statutory contexts’ where a

statutory provision has ‘explicitly created a right to information’” (quoting Animal

Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 502 (D.C. Cir. 1994))). Under such

circumstances, which are “exceedingly limited” as a practical matter, Food & Water

Watch v. Vilsack, 79 F. Supp. 3d 174, 197 (D.D.C. 2015), aff’d, 808 F.3d 905 (D.C. Cir.

2015), an alleged informational injury can provide the necessary injury in fact to

support Article III standing. The necessary circumstances do not exist in this case.

              1.     Section 10(c) Does Not Require FWS To Collect And Disclose
                     Information Beyond That Which Is Submitted To The Agency In
                     Support Of A Permit Application

       As the D.C. Circuit recently explained, “[a] plaintiff suffers sufficiently concrete

and particularized informational injury where the plaintiff alleges that: (1) it has been

deprived of information that, on its interpretation, a statute requires the government or a

third party to disclose to it, and (2) it suffers, by being denied access to that

information, the type of harm Congress sought to prevent by requiring disclosure.”

Friends of Animals v. Jewell (“Friends of Animals II”), No. 15-5223, 2016 WL

3854010, at *3 (D.C. Cir. July 15, 2016) (citation omitted). Importantly, it is well

established that “the existence and scope of an injury for informational standing

purposes is defined by Congress[.]” Id. at *2 (emphasis added) (citation omitted); cf.


                                              19
Warth v. Seldin, 422 U.S. 490, 514 (1975) (“Congress may create a statutory right or

entitlement the alleged deprivation of which can confer standing t o sue even where the

plaintiff would have suffered no judicially cognizable injury in the absence of statute.”

(citation omitted)). Consequently, a “plaintiff seeking to demonstrate that it has

informational standing generally need not allege any additional harm beyond the one

Congress has identified.” Friends of Animals II, 2016 WL 3854010, at *2 (emphasis

omitted) (internal quotation marks and citation omitted); see also Zivotofsky, 444 F.3d

at 617 (explaining that “[a]nyone whose request for specific information has been

denied has standing to bring an action; the requester’s circumstances—why he wants

the information, what he plans to do with it, what harm he suffered from the failure to

disclose—are irrelevant to standing” (citation omitted)).

       Here, Plaintiffs assert that they have suffered informational injury “because the

FWS’s failure to collect the information necessary to conclude that the authorized

export will ‘enhance the survival’ of the chimpanzee species, and its decision to instead

allow PSN, Yerkes, and Wingham to make this determination . . . [,] violated the

Plaintiffs’ right to receive and comment on such information before the FWS made the

decision at issue, as required by Section 10(c)[.]” (Pls.’ Mem. at 46 (emphasis in

original).) Pursuant to the above-cited cases, Plaintiffs might well have had a viable

contention that they were injured by this alleged deprivation of relevant information

that the agency failed to collect, but only if Section 10(c) actually does require the

agency “to collect the information necessary to conclude that the authorized export will

‘enhance the survival’ of the . . . species” (id.), and this Court sees no such affirmative-

collection requirement in that statutory provision. Indeed, the plain text of the




                                             20
disclosure requirement in Section 10(c) is far more limited; as relevant here, it provi des

only that “[i]nformation received by the Secretary as a part of any application [for a

permit] shall be available to the public as a matter of public record at every stage of the

proceeding.” 16 U.S.C. § 1539(c) (emphasis added). By its terms, then, Section 10(c)

“creates a “right to information[,]” Friends of Animals v. Jewell (Friends of Animals I),

824 F.3d 1033, 1041 (D.C. Cir. 2016), but that right extends only to the information

that the agency receives in connection with a permit application, and Congress did not

impose any duty to make an affirmative effort to collect certain information as part of

the permitting process, which is the failure that Plaintiffs contend has injured them.

Consequently, Plaintiffs’ alleged informational injury—i.e., that they did not receive

information that FWS failed to collect (where the disclosure provision upon which

Plaintiffs rely to support this assertion does not require the collection of such

information)—is not a cognizable injury for standing purposes.

       The D.C. Circuit’s recent decision in Friends of Animals II makes clear why this

is so. That case involved Section 4(b) of the ESA, which authorizes petitions to the

Secretary of the Interior to request that a species be added or removed from the

endangered or threatened species lists. See 16 U.S.C. § 1533(b)(3)(A). Under Section

4(b)(3)(A), once petitioned, the agency has 90 days to decide “whether the petition

presents substantial . . . information indicating that the petitioned action may be

warranted.” Id. If so, then, within 12 months of receiving the petition, the agency must

make one of three potential findings, each of which, when made, triggers a duty on the

agency’s part to publish certain finding-specific information in the Federal Register.

See Friends of Animals II, 2016 WL 3854010, at *1 (citing 16 U.S.C. § 1533(b)(3)(B) );




                                             21
see also id. at *3 (explaining that Congress adopted a “sequential procedural structure”

insofar as “[t]he disclosure requirement sets forth what information the [agen cy] must

publish after making a given finding” (emphasis in original)). The Friends of Animals

II plaintiff was a nonprofit organization that contended the agency had blown through

the 12-month deadline for making findings, see id. at *2, *4, and claimed informational

standing to enforce the findings requirement on the grounds that, insofar as meeting the

deadline for making findings triggered a disclosure requirement, the Secretary’s failure

to meet the deadline deprived them of the information to which t hey would be entitled,

see id. at *3–4.

       The D.C. Circuit rejected this informational standing contention. Stated simply,

the Circuit focused on “the first part of the [informational standing] inquiry” —i.e., the

requirement that the plaintiff be deprived of information that the statute requires

produced—and, based on its evaluation of the statutory provisions at issue, concluded

that “[t]he disclosure requirement [plaintiff] points to as the source of its informational

injury does not impose any obligations on the [agency] until a later time in the listing

process.” Id. at *3. Under the Circuit’s reading, “[t]he structure of section 4(b)(3)(B)

makes clear that [the deadline and disclosure] requirements arise sequentially[,]” id.,

and thus, “Congress placed the Secretary under no obligation to publish any information

in the Federal Register until after making a 12-month finding[,]” id. This same analysis

plainly supports this Court’s conclusion that the absence of a ny collection requirement

in Section 10(c)’s disclosure provision prevents Plaintiffs from claiming injury as a

result of FWS’s failure to undertake any such action.




                                            22
       But there is more. Because the Friends of Animals II plaintiffs apparently

recognized that the statutory conditions for the required disclosure of information had

not come to pass, the complaint that was filed in that case claimed the only

transgression that could plausibly be pled under the circumstances: that the agency had

missed the 12-month deadline for making the requisite findings. See id. at *4 (noting

that the plaintiff had called its case “a deadline suit” and that its “complaint seeks to

have the court order compliance with section 4(b)(3)(B)’s deadline requirement, not its

disclosure requirement” (internal quotation marks and citation omitted)). The Circuit

emphasized, however, that Congress intended for the deadline duty to be a “distinct”

obligation of the agency, id. at *3, and thus, the plaintiff would not be permitted to

assert that it had suffered an informational injury (i.e., that its right to information had

been violated) based on the agency’s failure to satisfy the deadline for making findings.

Indeed, according to the Circuit, the fact that the plaintiff’s claim necessarily arose

under the deadline provision, as opposed to the disclosure provision, only underscored

the conclusion that, per the statute, the agency had no obligation to disclose information

until such time as findings were made. See id. at *4 (“[Plaintiff’s] complaint, in other

words, demonstrates precisely why it lacks informational injury: before the [agency]

makes a 12-month finding, section 4(b)(3)(B) does not mandate the disclosure of any

information whatsoever.”).

       So it is here. Plaintiffs’ ESA claims challenge FWS’s export-permit decision as

an arbitrary-and-capricious contravention of Sections 10(a) and 7(a)(2), rather than as a

violation of Section 10(c), presumably precisely because Section 10(c) does not itself

require the agency to collect and disclose the information that Plaintif fs assert that




                                             23
Section 10(c) requires the agency to collect and disclose for the purpose of their

informational-injury argument. And just as the plaintiff in Friends of Animals II

earnestly argued that the statutory provisions in that case must be read “[t] ogether” and

interpreted to “confer on it the right to timely information” that could be the basis for

the plaintiff’s claim of informational injury, id. at *4 (internal quotation marks and

citation omitted), so, too, Plaintiffs here insist that the disclosur e mandate in Section

10(c) must be read to include a right (i.e., the right to force the agency to make

affirmative efforts to collect certain information and disclose it to the public) that

appears nowhere in the statute. In short, this Court cannot conc lude that Plaintiffs have

suffered an informational injury under the circumstances presented here consistently

with the D.C. Circuit’s holding in Friends of Animals II because, just as in that case,

the statutory provisions at issue here “do[] not [themselves] mandate the disclosure of

[the] information” that Plaintiffs say was improperly withheld from them. Id. at *1. 11

        Of course, the absence of any clear statutory requirement that FWS collect the

detailed information about the PSN project that Plaintiffs say should have been gathered

and disclosed to them pursuant to Section 10(c), raises the question: what is the real

source of Plaintiffs’ insistence that they have met the requirements for having an



11
   The D.C. Circuit’s holding in ASPCA v. Feld Entertainment, Inc., 659 F.3d 13 (D.C. Cir. 2011), is
along these same lines. There, plaintiffs who asserted that certain elephant-training methods were
prohibited by Section 9 alleged they had informational standing because —as they read Section 9—the
training methods were prohibited, which meant the de fendant circus organization could not “lawfully
engage in th[o]se practices without” obtaining a Section 10 permit, which would require it to submit the
pertinent information and FWS to make it available under Section 10(c). Id. at 17, 22. The Circuit
disagreed. “[N]othing in [S]ection 9”—the provision plaintiffs sought to enforce—“even under
[plaintiffs’] view, would entitle [them] to any information.” Id. at 23. And because the triggers
Congress created for the informational right had not been met (n or was whether they had been the point
of contention in the lawsuit), “a suit under [S]ection 10 would [have been] entirely premature.” Id. at
24; see id. (“Section 10’s disclosure requirements are . . . triggered only in the context of an ongoing
permit proceeding[.]”).



                                                  24
informational injury? The duty to collect information that Pla intiffs read into the

statute appears to be grounded, first, in their belief the agency could not make a rational

decision about whether the proposed permitting arrangement enhances the survival of

the chimpanzee species (as Section 10(a) requires) without collecting detailed

information about the PSN project (see Pls.’ Mem. at 46–47), and second, in the fact

that agency regulations require applicants for “enhancement” permits to include in the

application certain information about the “[l]ocation where the requested permitted

activity is to occur or be conducted[,]” 50 C.F.R. § 13.12(a)(2), including (1) a

“complete description and address of the institution or other facility where the wildlife

sought to be covered by the permit will be used, displayed, or maintained[,]” id.

§ 17.22(a)(1)(v); and (2) the “resume of the experience of those person[s] who will be

caring for the wildlife” covered by the permit, id. § 17.22(a)(1)(vi); see also id.

§ 17.22(a)(1)(vii) (requiring a “full statement of the reasons why the applicant is

justified in obtaining a permit including the details of the activities sought to be

authorized by the permit”). Plaintiffs argue that they “have a statutory right to

information that they contend the agency would be required to collect if Plaintiffs are

correct on the merits of their claims” (Pls.’ Corrected Mem. in Opp’n to the Cross-

Mots. For Partial Summ. J. & Reply in Supp. of Pls.’ Mot. (“Pls.’ Reply”), ECF No. 51-

1, at 38 (emphasis altered)), and insist that FWS’s failure to enforce “the agency’s own

regulations” (id.) by requiring Yerkes to submit substantial information about the PSN

project has injured them (see id. at 41 (maintaining that Plaintiffs are “suffering

informational injury because the FWS failed to obtain the informa tion necessary even to

consider granting the permit at issue”); see also Pls.’ Mem. at 47 (arguing that FWS




                                             25
“did not require Yerkes to submit any information about where the PSN program will

take place . . . , who will conduct that program, any of the qualifications of such

individuals, or any of the other details of the program[,]” and that Plaintiffs were

harmed by this “failure to obtain that required information and make it available to the

public” (emphasis in original))).

       This line of argument falls short in several respects. First of all, Section 10(a) is

not the disclosure provision upon which Plaintiffs’ informational-injury argument rests,

so Plaintiffs’ concern that FWS failed to collect information that the agency needed to

review in order to make a rational “enhancement” finding has no bearing on Plaintiffs’

informational-injury contention. Second, it is not at all clear that what FWS regulations

say about the information that an applicant must submit is responsive to the

informational-standing question that is at issue here—i.e., whether and under what

circumstances the statute requires the agency to disclose information to the public.

Third, and relatedly, the applicable disclosure provision —Section 10(c)—only directs

the agency to release information it has “received” in connection with a permit, 16

U.S.C. § 1539(c); it certainly does not purport, either explicitly or implicitly, to entitle

anyone to information FWS might have received if the agency (1) had understood the

permitting regulations differently, or (2) had reached the conclusion that the

information an applicant submitted was insufficient under that different view of the

regulatory requirements. In this regard, Plaintiffs appear to have based their

informational-injury assertion on a purportedly statute-based “right to information”

(Pls.’ Reply at 38) that is much broader than the right that Congress actually has

conveyed in the statute upon which Plaintiffs rely.




                                             26
        Finally, even assuming that the regulations establish and define the scope of

FWS’s duty to collect information, this Court can find nothing in those regulations that

supports a finding that the agency actually breached that collection obligation in the

manner Plaintiffs suggest. That is, the regulations expressly and repeat edly require that

an applicant submit various pieces of information about “the wildlife sought to be

covered by the permit[,]” 50 C.F.R. § 17.22(a)(1) (emphasis added), and other than

requiring “[a] full statement of the reasons why the applicant is justified in o btaining

the permit[,]” id. § 17.22(a)(1)(vii), the regulations do not mandate that the applicant

provide specific information pertaining to the manner and extent to which the species

will be enhanced if the permit issues. The fact that the regulations do not refer to or

require the submission of information relevant to the agency’s enhancement assessment

might well support Plaintiffs’ merits argument that the Section 10 permitting scheme

does not actually authorize an indirect enhancement arrangement such as the one at

issue here. But the lack of any provision of law that requires FWS to collect and

distribute the kinds of information that Plaintiffs say they did not receive clearly

undermines Plaintiffs’ claims of harm for the purpose of the informational-standing

analysis. See Friends of Animals II, 2016 WL 3854010, at *4; ASPCA v. Feld Entm’t,

Inc., 659 F.3d 13, 23–24 (D.C. Cir. 2011). 12


12
   The D.C. Circuit’s recent decision in Friends of Animals I is not to the contrary. Plaintiffs there
attacked a regulation (and the statute that ordered its promulgation) permitt ing certain owners of
“domestic, captive-bred” endangered antelope to “engage in activities otherwise prohibited by Section
9 of the ESA without applying for individual permits on a case -by-case basis.” 824 F.3d at 1036. The
Circuit held that plaintiffs—an animal-welfare advocacy group—had informational standing because
Section 10(c) is a disclosure statute, see id. at 1041, and because the challenged regulation
“eliminate[d] the applicability of individual Section 10 permitting requirements that would otherwise
have been necessary to engage in prohibited act ivities that enhance the propagation or survival of the
. . . antelope species.” Id. In other words, the regulation purported to make the congressionally
mandated informational triggers inapplicable in a wide swath of cases , and plaintiffs were injured
because Section 10(c) would otherwise entitle them to that information. See id. at 1042 (explaining


                                                  27
                2.       Plaintiffs’ Arguments To The Contrary Proceed From A Mistaken
                         Premise And Thus Are Not Persuasive

        Undaunted, Plaintiffs invoke “the well-established rule that to determine

standing the Court must accept Plaintiffs’ view of the merits.” (Pls.’ Reply at 39.)

According to Plaintiffs, this means that the Court is required to accept their view that

Section 10(c) confers on them a right to certain information that they say FWS had to,

yet failed to, collect. (See id. at 38 (maintaining that “this Court is required to assume”

that “Plaintiffs have a statutory right to information that they contend the agency would

be required to collect if Plaintiffs are correct on the merits of their claims ” (emphasis

in original)); see also id. at 42 (expressing the view that Section 10(c)’s “obligation to

collect and disclose . . . information applies to the entity that will be conductin g the

activities that the agency has concluded will ‘enhance the survival ’ of the species, here

PSN” and that, “again, the Court must accept this view of the statute when deciding

standing”).) But Plaintiffs are wrong to insist that, just because the Court is required to

assume the merits of their claims when conducting the informational-standing analysis,

it must also accept their legal argument that Section 10(c) requires the disclosure of

information under the circumstances that Plaintiffs envision , for at least two reasons.

        To begin with, it does not help Plaintiffs for this Court to assume that the claims

they have brought in this case are meritorious, since the claims these plaintiffs press are

wholly independent of the Section 10(c) argument they seek to advance for standing


that plaintiffs’ claims “directly implicate[d] Sectio n 10’s disclosure requirement”). Similar reasoning
explains the Circuit’s recognition of informational standing in Public Citizen v. FTC, 869 F.2d 1541
(D.C. Cir. 1989). See id. at 1542 (allowing plaintiffs to challenge a regulation that purported to exempt
“utilitarian objects for personal use” from the strictures of a federal statute that requi red “producers and
distributors of smokeless tobacco products . . . to include health warnings on . . . advertisements” for
such products (internal quotation marks and citation omitted)). Neither of these cases supports finding
informational standing where, as here, there is no congressionally mandated right to the information
that Plaintiffs say they are entitled to but have not received.


                                                     28
purposes. See Friends of Animals II, 2016 WL 3854010, at *4 (explaining that a

plaintiff whose claim of misconduct arises under a statutory provision that does not

require the disclosure of information cannot claim that he is i njured on the basis of a

distinct (albeit related) disclosure provision because “[a] plaintiff can demonstrate

informational injury [only] where it seeks to enforce [statutory] disclosure

requirements” (citation omitted)); Feld, 659 F.3d at 23. 13 Second, and perhaps even

more important, the D.C. Circuit’s reasoning in Friends of Animals II completely belies

any contention that a court’s informational-standing analysis is constrained by a

plaintiff’s assertion that a particular disclosure provision requires the disclosure of

information on the terms the plaintiff dictates. As explained above, the plaintiff in

Friends of Animals II specifically argued that the deadline and disclosure provisions of

Section 4(b)(3)(B) of the ESA must be read together, and so read, must b e construed to

“confer on it the right to timely information.” Friends of Animals II, 2016 WL

3854010, at *4 (internal quotation marks and citation omitted). Far from adopting this

construction of that statute, the Circuit squarely rejected the plaintiff’s interpretation,

and it found, instead, that “nothing in the Act or its legislative history indicates that the

deadline requirement . . . should be read to incorporate the informational purpose of

section 4(b)(3)(B)’s disclosure requirement” as a matter of law. Id. at *4. Notably,

nothing about “the well-established rule that . . . the Court must accept Plaintiffs’ view

of the merits” when determining standing (Pls.’ Reply at 39) compelled the Friends of

Animals II panel to ignore the even more venerable and well-settled principle that it is

the role of the court to determine the meaning of a statute, see id. at *3–4; cf. Nixon v.


13
  As explained above, none of Plaintiffs’ merits arguments relate to claims that have been brought
under Section 10(c). (See Pls.’ Mem. at 29–45.)


                                                  29
Sirica, 487 F.2d 700, 714 (D.C. Cir. 1973) (“[I]t is emphatically the province and duty

of the judicial department to say what the law is.” (internal quotation marks and

footnote omitted)). And as reflected in Part III.A.1 of the instant Memorandum

Opinion, this Court rightly has assumed that same role here.

       To be sure, the D.C. Circuit has, at times, asserted that a plaintiff ’s informational

injury is to be evaluated in light of the plaintiff’s interpretation of a statute. See, e.g.,

Friends of Animals I, 824 F.3d at 1040–41 (explaining that “a denial of access to

information can work an injury in fact for standing purposes, at least where a statute

(on the claimants’ reading) requires that the information be publicly disclosed and there

is no reason to doubt their claim that the information would help them” (emphasis

added) (internal quotation marks omitted) (quoting Ethyl Corp. v. EPA, 306 F.3d 1144,

1148 (D.C. Cir. 2002))); Feld, 659 F.3d at 23 (“To establish [informational] injury, a

plaintiff must espouse a view of the law under which the defendant (or an entity it

regulates) is obligated to disclose certain information that the plaintiff has a right to

obtain.”). But this Court takes this directive to mean that, while it is completely within

the province of the court to determine whether and under what circumstances a statutory

provision requires the disclosure of information, any dispute about whether such

circumstances exist in the case at bar must be decided in plaintiff’s favor for standing

purposes.

       So, for example, in FEC v. Akins, 524 U.S. 11 (1998), the Supreme Court read

the statute at issue—the Federal Election Campaign Act of 1971 (“FECA”)—as

“impos[ing] extensive recordkeeping and disclosure requirements upon groups that fall

within the Act’s definition of a ‘political committee[,]’” id. at 14, apparently of its own




                                              30
volition and without even referring to how the plaintiffs had interpreted the statute. In

fact, what the FECA said about the circumstances under which disclosures must be

made was not disputed; the issue that arose was a statute-based question of a different

nature: given that only “political committees” were required to make plaintiffs’ desired

disclosures per the statute, the parties debated whether the American Israel Public

Affairs Committee (“AIPAC”) qualified as a “political committee” within the meaning

of that statute. Id. at 17–18. It was only when assessing the plaintiffs’ argument that

AIPAC was a political committee (and thus that plaintiffs had been deprived of the

required disclosures) that the Supreme Court concluded that the plaintiffs’ injury in fact

was “their inability to obtain information—lists of AIPAC donors . . . and campaign-

related contributions and expenditures—that, on [plaintiffs’] view of the law, the statute

requires that AIPAC makes public.” Id. at 21 (emphasis added); see also Feld, 659

F.3d at 23 (explaining that, in Akins, “plaintiffs’ contrary view of the law” consisted of

its position “that AIPAC’s activities rendered it a ‘political committee’” and therefore ,

“[w]ere plaintiffs to prevail, AIPAC would have to disclose the inf ormation [plaintiffs]

sought” (citation omitted)). Thus, for standing purposes, the Supreme Court merely

accepted the plaintiffs’ assertion that the statute reached AIPAC’s conduct, see Akins,

524 U.S. at 18, 21, which, in this Court’s view, says nothing about whether a cou rt is

required to accept a plaintiff’s threshold legal argument about whether and to what

extent a statute requires disclosure at all. Cf. Friends of Animals I, 824 F.3d at 1041

(finding, based on the Court’s own statutory analysis, that Section 10(c) “cr eates a right

to information upon which a claim of informational standing may be predicated”).




                                            31
       D.C. Circuit cases that purport to accept the plaintiff’s view of the law while

analyzing standing can be read this way as well. See, e.g., Judicial Watch, Inc. v. U.S.

Dep’t of Commerce, 583 F.3d 871, 872–73 (D.C. Cir. 2009) (finding “obvious[]” injury

in fact to support a claim that the Department of Commerce violated the Federal

Advisory Committee Act by failing to make disclosures with respect to advisory

committees and assuming for standing purposes that certain organizations in question

were in fact advisory committees); see also Feld, 659 F.3d at 23 (describing the

standing analysis in Judicial Watch as accepting “plaintiff’s view of the law” that those

organizations were “‘advisory committees’ under FACA[,]” thus triggering “ ‘an array

of FACA obligations’ to disclose information” (internal quotation marks and citation

omitted)). And when that meaning of the well-established requirement that the court

accept the plaintiff’s view of the law with respect to the merits of its claims is applied,

it is readily apparent that Plaintiffs’ assertion here that this Court must adopt its

threshold argument that Section 10(c) is the type of disclosure statute that requ ires FWS

to collect certain information for inclusion in its permit-related files is misguided.

       The bottom line is this: just as the D.C. Circuit held that the disclosure provision

in Friends of Animals II imposed no disclosure obligation on the Secretary until she had

made her deadline finding, this Court finds that Section 10(c) imposes no disclosure

obligation with respect to any permit-related information beyond the information that

FWS receives as part of the application, and this Court need not accept Plaintiffs’

assertions that Section 10(c) is actually broader than its plain text provides. And

because Plaintiffs here do not have any right under Section 10(c) to information that

FWS did not receive in connection with Yerkes’s export-permit application, even




                                             32
though they have vigorously argued otherwise, Plaintiffs have not suffered a cognizable

informational injury.

       B.     NEAVS Does Not Have Organizational Standing

       Plaintiffs’ second standing theory rests on NEAVS’s contention that FWS’s

permit decision will injure that organization because it will harm “NEAVS’[s] ability to

carry out one of its key missions[.]” (Pls.’ Mem. at 48.) According to Plaintiffs,

NEAVS “is dedicated to ending the use of animals in research, testing[,] and science

education[,]” and has been fighting to have captive chimpanzees sent to chimpanzee

sanctuaries in the United States for a long time. (Decl. of Theoroda[sic] Capaldo

(“Capaldo Decl.”), Ex. 22 to Pls.’ Mot., ECF No. 39-24, ¶¶ 1, 3.) NEAVS’s President

avers that, “as a direct and immediate result of the unlawfully issued permit” that is

being challenged in this case, “NEAVS will be forced to expend more resources

attempting to rescue and protect the eight Yerkes chimpanzees that FWS has authorized

to be relocated to Wingham[,]” and the increased expenditures allegedly will include

the cost of (1) “monitoring what happens to these chimpanzees and their progeny once

the chimpanzees are shipped to England,” and (2) “advocat[ing] for the greatest

protection possible for these animals under the laws of the United Kingdom[.]” (Id.

¶ 5.) In this Court’s view, recent D.C. Circuit case law confirms that organizational

standing requires more than a sincere and strong objection to the challenged

government action and a stated intention to use the organization’s resources to oppose

it, as explained below. And a review of the record evidence reveals that NEAVS has

not demonstrated anything more than that.




                                            33
              1.     An Organization That Sues On Its Own Behalf Must Show That
                     The Challenged Action Poses An Actual Or Imminent Threat To Its
                     Ability To Perform Its Activities

       Simply stated, an organization is permitted to assert standing on its own behalf,

but only if it can demonstrate that it has an “actual or threatened injury in fact that is

fairly traceable to the alleged illegal action and likely to be redressed by a favorable

court decision.” PETA v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015) (internal

quotation marks and citation omitted); see also Havens Realty Corp. v. Coleman, 455

U.S. 363, 378–79 (1982). The difficulty in applying these core principles—see PETA,

797 F.3d at 1099, 1101 (Millet, J., dubitante); Int’l Acad. of Oral Med. & Toxicology v.

FDA, No. 14-356, 2016 WL 3659887, at *6 (D.D.C. July 1, 2016)—arises from the fact

that, just as individuals need more than a “special interest” in the subject matter of their

lawsuit to have Article III standing, Lujan, 504 U.S. at 563 (internal quotation marks

and citation omitted), “an organization’s abstract interest in a problem is insuf ficient to

establish standing, ‘no matter how longstanding the interest and no matter how

qualified the organization is in evaluating the problem[,]’” Feld, 659 F.3d at 24

(quoting Sierra Club v. Morton, 405 U.S. 727, 739 (1972)); see also id. at 24–25

(explaining that “‘an organization’s abstract concern with a subject that could be

affected by an adjudication does not substitute for the concrete injury’” that Article III

demands (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976))).

Therefore, “organizations who seek to do no more than vindicate their own value

preferences through the judicial process generally cannot establish standing.” Id.

(internal quotation marks and citation omitted).

       Helpfully, the D.C. Circuit has developed standards to assist district courts in

determining when an organization that has an abstract interest in a legal dispute has


                                             34
also established the concrete injury that is required to establish that it has Article III

standing to sue on its own behalf. The Circuit has adopted a two-part test for

organizational standing: courts must “ask, first, whether the agency’s action or

omission to act injured the [organization’s] interest and, second, whether the

organization used its resources to counteract that harm.” Food & Water Watch, 808

F.3d at 919 (alteration in original) (quoting PETA, 797 F.3d at 1094).

       With respect to part one, when the Court undertakes to evaluate the alleged

injury to the organization’s interest, the organization’s activities—and the extent to

which the challenged act threatens to damage its ability to conduct those activities—is

the key. See Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469

F.3d 129, 133 (D.C. Cir. 2006) (“The court has distinguished between organizations

that allege that their activities have been impeded from those that merely allege that

their mission has been compromised.” (emphasis added)); see also Food & Water

Watch, 808 F.3d at 919 (requiring a “concrete and demonstrable injury to [the

organization’s] activities” (internal quotation marks omitted) (quoting PETA, 797 F.3d

at 1093)); Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011)

(explaining that, to show injury in fact, an organization must show “concrete and

demonstrable injury to the organization’s activities—with [a] consequent drain on the

organization’s resources—constitut[ing] . . . more than simply a setback to the

organization’s abstract social interests.’” (alterations in original) (internal quotation

marks and citation omitted)).

       Furthermore, to establish that there has been a cognizable injury to its interests

(activities), “an organization must allege that the defendant’s conduct perceptibly




                                             35
impaired the organization’s ability to provide services[ ,]” Turlock Irrigation Dist. v.

FERC, 786 F.3d 18, 24 (D.C. Cir. 2015) (internal quotation marks and citation omitted),

and it can demonstrate such impairment by showing, for example, that the “defendant’s

conduct causes an inhibition of [the organization’s] daily operatio ns[,]” Food & Water

Watch, 808 F.3d at 920 (alteration in original) (internal quotation marks and citation

omitted); see also Chesapeake Climate Action v. Exp.-Imp. Bank, 78 F. Supp. 3d 208,

234 (D.D.C. 2015) (requiring, at the summary judgment stage, “‘specific facts’ to show

concrete ways in which . . . programmatic activities were harmed” by the challenged

action). That was the case in PETA v. USDA, 797 F.3d 1087 (D.C. Cir. 2015), because

the group People for the Ethical Treatment of Animals (“PETA”) had established that

the refusal of the U.S. Department of Agriculture to apply certain statutory animal -

welfare requirements to birds (the act that the organization sought to challenge)

prevented PETA from “seek[ing] redress for mistreatment of birds through the USDA’s

complaint procedures” and from gaining “access to bird-related . . . information” that

the organization needed in order to educate its members and advocate for the rights of

birds. Food & Water Watch, 808 F.3d at 920 (internal quotation marks and citations

omitted); see also PETA, 797 F.3d at 1091, 1095. By contrast, in Food & Water

Watch, 808 F.3d 905 (D.C. Cir. 2015), a food-safety organization complained that the

time and resources it had already spent fighting a new poultry-inspection rule would be

wasted if the rule took effect, see Food & Water Watch, 79 F. Supp. 3d at 200, and also

that it would be forced to use some of its education funds to educate its members and

warn the public about the rule’s negative effects, id., yet the Circuit found that the

organization had alleged only an “abstract injury to its interests” that was not enough to




                                            36
demonstrate impairment of its organizational activities, Food & Water Watch, 808 F.3d

at 921; see also id. at 919 (“An organization must allege more than a frustration of its

purpose because frustration of an organization’s objectives ‘is the type of abstract

concern that does not impart standing.’” (quoting Nat’l Taxpayers Union, Inc. v. United

States, 68 F.3d 1428, 1433 (D.C. Cir. 1995)). Additionally, the Circuit emphasized that

“an organization’s use of resources for litigation, investigation in anticipation of

litigation, or advocacy is not sufficient to give rise to an Article III injury[,]” id.

(citations omitted), because an organization that chooses to spend its money in this way

has made a “self-inflicted budgetary choice that cannot qualify as an injury in fact[ ,]”

Feld, 659 F.3d at 25 (internal quotation marks and citation omitted ).

       It is clear from the Circuit’s holdings in these and other cases that having a

concrete injury to an organization’s interests means that the challenged activity must

hamper the organization’s ability to do what it does, see Int’l Acad., 2016 WL 3659887,

at *11, and that complaining that the organization’s ultimate goal has been made more

difficult is not sufficient, see Nat’l Ass’n of Home Builders, 667 F.3d at 11–12. Nor

does it suffice to show that the challenged action runs directly counter to the

organization’s mission, see Food & Water Watch, 808 F.3d. at 921 n.9, or that the

organization will have to divert resources to combat it, Nat’l Veterans Legal Servs.

Program v. U.S. Dep’t of Def., No. 14-1915, 2016 WL 4435175, at *7 (D.D.C. Aug. 19,

2016) (finding the organization’s allegations that the challenged action caused it to

redeploy “scarce resources” to be insufficient to establish standing). This Court has no

doubt that the impairment that is required necessitates perceptible strictures on the

organization’s ability to function, see, e.g., id. at *6 (“[O]rganizational plaintiffs [must]




                                              37
alleg[e] specific facts indicating how a defendant’s actions undermine the

organization’s ability to perform its fundamental programmatic services.” (emphasis

added)); Elec. Privacy Info. Ctr. v. U.S. Dep’t of Educ., 48 F. Supp. 3d 1, 24 (D.D.C.

2014) (asking whether the challenged action “impaired [plaintiff’s] ability to provide its

programs or carry out its activities”), and that NEAVS has failed to demonstrate that it

has organizational standing, as explained below.

              2.     NEAVS’s Contention That It Will Have To Spend Money To
                     Thwart The Negative Effects Of The Export Permit Falls Far Short
                     Of Demonstrating That The Permit Has Hampered (Or Will
                     Imminently Hamper) Its Activities Or Operations

       Even assuming that NEAVS “has spent many years and resources” fighting for

research chimpanzees (including Yerkes-owned chimpanzees) to be retired to

chimpanzee sanctuaries (Pls.’ Mem. at 48 (quoting Capaldo Decl. ¶ 3) (internal

quotation marks omitted)), and even if sending chimpanzees to Wingham directly

conflicts with the goals of an organization whose mission centers on “ending the use of

animals in research, testing[,] and science education[,]” (Capaldo Decl. ¶ 1), NEAVS

has not shown that Yerkes’s export permit impairs NEAVS’s own activities or

operations in any perceptible way. Indeed, the testimony that Plaintiffs have offered

comes nowhere close to specifying how the permit interferes with NEAVS’s ability to

do its job—e.g., how, due to this particular government action, the organization is

prevented from advocating for the transfer of laboratory animals to sanctuaries—and,

instead, NEAVS’s declarant makes statements that are remarkably close to the kinds of

general mission-frustration contentions that the D.C. Circuit has considered (and

rejected) as a basis for finding organizational standing.




                                            38
       For example, NEAVS’s President says that this export permit “is frustrating the

explicit mission” of the organization’s flagship campaign (titled “Project R & R

(Release and Restitution)”) (Capaldo Decl. ¶ 4), and her declaration makes clear that

this frustration does not stem from the fact that the Yerkes export permit impacts

NEAVS’s ability to wage that campaign in some way, but from the fact that exporting

the Yerkes chimpanzees to a zoo in England is an act that is in ideological opposition to

the organization’s core belief that “such chimpanzees [should] be retired to chimpanzee

sanctuaries in the United States where they can live out the remainder of their lives in

settings that mimic their natural habitats to the greatest extent possible[.]” (Id. ¶ 3.)

This is no different than Food & Water Watch’s argument that the government’s new

poultry-inspection rules conflicted with its ideological belief that slaughterhouse

employees cannot be trusted to inspect poultry carcasses and condemn the tainted ones,

see Food & Water Watch, 808 F.3d at 920, and upon considering that argument, the

D.C. Circuit concluded that such a conflict between the government’s action and the

organization’s mission was “nothing more than an abstract injury” that was insufficient

to support organizational standing, id. at 921.

       NEAVS’s related assertions about the expenditure of resources—i.e., that it will

be forced to spend (or shift) resources in an attempt to rescue the relocated

chimpanzees, monitor their status, advocate for them under any and all applicable laws,

and prevent other chimpanzee owners from “rid[ding] themselves of chimpanzees” in a

similar fashion (Capaldo Decl. ¶¶ 4–6)—fare no better. The D.C. Circuit has made

clear that such budgetary choices merely reflect shifting priorities regarding “the

expenditure of resources on advocacy[,]” Turlock, 786 F.3d at 24, and it has long held




                                             39
that this type of harm amounts to a “self-inflicted” wound, Feld, 659 F.3d at 25

(internal quotation marks and citation omitted), that does not qualify as “a cognizable

Article III injury[,]” Turlock, 786 F.3d at 24 (citation omitted). NEAVS would have

this Court hold otherwise, by pointing to the PETA panel’s statement that, “if an

organization expends resources in response to, and to counteract, the effects of the

defendants’ alleged [unlawful conduct] rather than in anticipation of litigation, . . . it

has suffered a concrete and demonstrable injury that suffices for purposes of standing.”

(Pls.’ Mem. at 49 (alterations in original) (quoting PETA, 797 F.3d at 1097) (internal

quotation marks omitted)). But that statement must be evaluated in the context in

which it was made, and PETA’s standing was clearly derived not only from the fact that

the challenged government actions had actually impaired the organization’s ability to

perform its services, but also the organization’s expenditure of resources as a result.

See PETA, 797 F.3d at 1095; see also Food & Water Watch, 808 F.3d at 920–21

(explaining that, due to the challenged action, PETA had suffered “[t]he denial of

access to an avenue for redress and denial of information” in a manner that “perceptibly

impaired [the organization’s] ability to both bring [statutory] violations to the attention

of the agency charged with preventing avian cruelty and continue to educate the public”

(second and third alterations in original) (internal quotation marks and citation

omitted)).

       Plaintiffs’ insistence that NEAVS’s “core campaign will be impaired” due to the

Yerkes export permit because the export “will make it impossible for NEAVS to

advocate for the release of these seven chimpanzees” to a sanctuary (Pls.’ Mem. at 49 –

50 (citing Capaldo Decl. ¶ 4)) (emphasis added), also misses the mark. As an initial




                                             40
matter, they have offered no proof for that contention because the declaration that

Plaintiffs cite in support of this assertion does not say that. Furthermore, nothing in the

record demonstrates that it would, in fact, be “impossible” for NEAVS to lobby

Wingham to release these chimpanzees to a sanctuary, much less that the organization’s

failure to achieve its mission with respect to these particular animals prevents it from

being able to continue to wage its campaign in the future. In the absence of such

evidence, the frustration that NEAVS has encountered with respect to its efforts to

advocate for the release of these particular chimpanzees is merely a discrete ideological

setback that cannot be deemed to rise to the level of impairment of its services or daily

operations, as the D.C. Circuit has required. See Food & Water Watch, 808 F.3d at

919; Int’l Acad., 2016 WL 3659887, at *11. And because Plaintiffs have failed to

establish that the challenged export has injured (or will injure) NEAVS’s organizational

interests, Plaintiffs’ contention that NEAVS has organizational standing (see Pls.’

Mem. at 48–50), fails.

       C.     The Individual Plaintiffs Do Not Have Cognizable Injuries That Have
              Been Caused By FWS’s Permitting Decision

       Plaintiffs’ final standing argument is that Yerkes’s transfer of its chimpanzees to

Wingham will injure three individual plaintiffs, each of whom is a former Yerkes

employee who claims to have formed strong bonds with the particular chimpanzees at

issue here while they cared for them. (Pls.’ Mem. at 50–53; see also Decl. of Brian

Hare (“Hare Decl.”), Ex. 2 to Pls.’ Mot., ECF No. 39 -4, 2–11, ¶¶ 5, 7, 9; Decl. of

Jennifer Feuerstein (“Feuerstein Decl.”), Ex. 3 to Pls.’ Mot., ECF No. 39 -5, 2–10, ¶ 3;

Decl. of Rachel Weiss (“Weiss Decl.”), Ex. 23 to Pls.’ Mot., ECF N o. 39-25, 2–6, ¶¶ 5,




                                            41
10.) 14 As far as this Court can tell, Plaintiffs have alleged that the export permit they

seek to challenge injures the individual plaintiffs in two ways: first, Plaintiffs say, these

individuals “have been waiting for years for the day when they would have a chance to

be reunited with these animals they love,” so “there really can be no question that they

will be irrevocably harmed if the FWS allows the chimpanzees Yerkes has already

decided to retire to be shipped to Wingham where the y will instead be further

commercially exploited, rather than to a humane setting somewhere in the United States

where these Plaintiffs could visit them.” (Pls.’ Reply at 46; see also, e.g., Feuerstein

Decl. ¶ 4 (“[I]f the requested export goes forward, I will be unable to observe the

chimpanzees because they will be relocated to a foreign, unaccredited zoo far from

where I reside.”).) In the following discussion, the Court refers to this alleged harm as

the individual plaintiffs’ ‘dashed-hopes’ injury. (See infra Part III.C.1.) Second,

Plaintiffs suggest that the individual plaintiffs will be compelled to visit these

chimpanzees if they are sent to Wingham, and if they go there, Plaintiffs will observe

these animals in an environment in which the chimpanzees will be “traumatized” (Pls.’

Mem. at 51) and “further commercially exploited” (Pls.’ Reply at 46), which will

allegedly cause these plaintiffs to suffer “personal, aesthetic, and emotional injur[y]”




14
   According to their declarations and attached documentation, Hare is an Associate Professor at Duke
University who worked at Yerkes for four years—between 1995 and 1999—as a student researcher
(Hare Decl. ¶¶ 1–2; Attachment A to Hare Decl., ECF No. 39-4, 12–26, at 14). Feuerstein, a biologist,
was a Yerkes employee from 1997 to 2003 (Feuerstein Decl. ¶¶ 1 –2; Attachment A to Feuerstein Decl.
at 2, ECF No. 39-5, 11–14, at 13). Weiss is a former “care technician” who worked fo r Yerkes for two
years in the mid-1990s (Weiss Decl. ¶ 2; Attachment A to Weiss Decl., ECF No. 39 -25, 7–10, at 10).
Plaintiffs do not press an argument that the fourth named individual plaintiff (Mary Lee Jensvold) has
individual standing, nor do they attempt to assert that plaintiff Georgia the chimpanzee has the capacity
to sue in federal court. Thus, at least as far as their individual -standing contentions go, Plaintiffs have
failed to carry their burden with respect to Jensvold and Georgia. See, e.g., Int’l Acad., 2016 WL
3659887, at *5; see also Nat’l Treasury Emps. Union v. United States , 101 F.3d 1423, 1427 (D.C. Cir.
1996).


                                                    42
(id. at 44). (See, e.g., Hare Decl. ¶¶ 21, 25 (claiming he would like to visit the

chimpanzees again in a “humane setting” and to view them behaving in ways he

believes are natural, and that the export will harm him because, if he visits Wingham

afterwards, he “will be injured when Wingham’s untrained, in experienced staff

mishandles and mismanages” the chimpanzees, causing the chimpanzees to behave in

“unnatural, aberrant” ways); Weiss Decl. ¶ 10 (claiming that if the permit is issued , she

“will have to travel to England to see” the chimpanzees and “will o nly be able to

observe [them] acting unnaturally” in an environment of which she disapproves and

“will be injured by seeing the physical and psychological manifestations of the stress

and trauma experienced by the chimpanzees from living in an unnatural an d inhumane

environment”).) This injury is “aesthetic” in nature, see ASPCA v. Ringling Bros. &

Barnum & Bailey, 317 F.3d 334, 337 (D.C. Cir. 2003); Animal Legal Def. Fund, Inc. v.

Glickman, 154 F.3d 426, 431 (D.C. Cir. 1998) (en banc), and the Court has evaluated it

as such, see infra Part III.C.2.

       As explained below, the D.C. Circuit’s jurisprudence teaches that not every

circumstance that disappoints a plaintiff works a cognizable injury for the purpose of

Article III, see, e.g., In re Navy Chaplaincy, 534 F.3d at 763; moreover, in the instant

case, the dashed-hopes harm these individual plaintiffs allegedly have suffered is also

not even fairly traceable to FWS’s decision to issue the export permit . As for

Plaintiffs’ suggestion that these three individuals will be injured by the permit because,

while they “desire to see [the chimpanzees] again in a humane setting where they can

enjoy their company” and “observe them engage in normal chimpanzee behavior[,]”

they will instead have to see these animals in an environment of “commercial




                                            43
confinement and exploitation” (Pls.’ Reply at 44), the record does not establish that any

of these individual plaintiffs will, in fact, travel to see the chimps in the environment

they decry, or that, if they do, Wingham necessarily will have mistreated the chimps in

such a way that these plaintiffs’ aesthetic interests inevitably will be harmed, which

means that Plaintiffs have failed to satisfy the standards for proving an imminent

aesthetic injury. Furthermore, and in any event, this Court views any injury to these

plaintiff’s personal and aesthetic sensibilities from seeing the chimpanzees in the

Wingham facility as self-inflicted at its core.

              1.      The Individual Plaintiffs’ Dashed-Hopes Harm Is Not An Injury In
                      Fact, And Even If It Qualifies As Such, It Is Yerkes’s Placement
                      Decision, Not FWS’s Permit, That Caused This Injury

       Plaintiffs argue that their dashed-hopes injury is an aesthetic harm that should be

found to be sufficient to ground the individual plaintiffs’ standing. (See Pls.’ Reply at

46 (“[T]hese Plaintiffs who have been waiting for years for the day when they would

have a chance to be reunited with these animals they love . . . will be irrevocably

harmed if the FWS allows the chimpanzees . . . to be shipped to Wingha m . . . , rather

than to a humane setting somewhere in the United States[.]” (citations omitted)).) As

an initial matter, it has not been established that the dashing of these individuals’ hope

that the chimpanzees would be sent to a sanctuary actually qualifies as an “aesthetic”

injury, and this Court doubts the applicability of that label under existing law. To be

sure, it is well established that “harm to ‘the mere esthetic interests of the plaintiff . . .

will suffice’ to establish a concrete and particularized injury[,]” Sierra Club v. Jewell,

764 F.3d 1, 5 (D.C. Cir. 2014) (quoting Summers, 555 U.S. at 494), but such interests

typically include “the desire to use or observe an animal species,” id. (emphasis added),

or the “plaintiff’s enjoyment of flora or fauna,” Ringling Bros., 317 F.3d at 337


                                              44
(emphasis added), or the “aesthetic interest in observing animals living under humane

conditions[,]” Glickman, 154 F.3d at 431 (emphasis added). And what Plaintiffs assert

with their dashed-hopes contention actually has nothing to do with the impact of the

challenged permit on what these individuals are likely to see or feel when in the

company of the chimpanzees they say they love. Instead, Plaintiffs insist that what has

injured these former Yerkes employees is the mere knowledge—presumably acquired

while sitting at home—that the animals that they love will be sent somewhere that is not

up to these plaintiffs’ personal standards. (See, e.g., Pls.’ Reply at 46; Pls.’ Mem. at

51; Feuerstein Decl. ¶ 4.)

       It is not at all clear that being saddened by the knowledge that an animal you

love but with which you have no present contact may be sent to a place in which it will

potentially be mistreated (see Pls.’ Reply at 46)—as opposed to seeing such an animal

in that condition—qualifies an aesthetic harm. See Oxford English Dictionary 206 (2d

ed. 1989) (defining aesthetic in the adjectival sense as meaning “of or relating to

sensuous perception” or being “received by the senses”); see also Ringling Bros., 317

F.3d at 337 (finding standing where plaintiff would return to the environment where he

would detect the effects of the challenged activity on animals he loved and be injured

by such observation); Glickman, 154 F.3d at 437 (articulating a “principle of standing”

that “recognize[s] individual plaintiffs’ injury in fact based on affronts to their aesthetic

interests in observing animals living in humane habitats, or in using pristine

environmental areas that have not been despoiled”). Presumably, this is what

Defendants mean when they emphasize that the individual plaintiffs have not worked

with these chimpanzees, or been in their presence, for years, and have no present right




                                             45
to visit these animals. (See Defs.’ Mem. at 24–25.) That is, far from a baseless attack

on the strength of the individual plaintiffs’ alleged emotional bond with these animals

or a discounting of these plaintiffs’ love for them, this line of argument is properly

construed as a rebuttal to Plaintiffs’ insistence that this Court must find that the

individual plaintiffs have suffered a cognizable aesthetic injury because they know

“these animals are going somewhere, and depending on where, Plaintiffs will either be

able to visit and observe them again or never be able to do so” (Pls.’ Mem. at 51

(emphasis in original))—an assertion that, in the absence of some sort of tangible

experience, is not ordinarily the stuff of which aesthetic injuries are made.

       Indeed, Plaintiffs have failed to cite a single case in which a court has held that a

similar dashed-hope theory of injury is sufficient to demonstrate that the plaintiff has

suffered an injury in fact for the purpose of Article III standing. This Court suspects

that no such case exists, because the dashed-hope harm that Plaintiffs assert actually is

functionally indistinguishable from the following generalized grievance that is

indisputably insufficient to support standing: that the agency has decided to act in a

manner that Plaintiffs dislike under circumstances in which the agency could have

opted to do otherwise. (See, e.g., Pls.’ Reply at 46 (asserting that FWS’s decision to

allow the chimpanzees to be “shipped to Wingham” instead of a U.S. sanctuary will

“irrevocably harm[]” these plaintiffs (citation omitted)); see also id. (arguing that “if

after years of advocating for the release of [an] animal [she loves] from an adverse

situation [a] person finally has a chance to be reunited with [it],” but the owner decides

not to permit that outcome, “surely she suffers the requisite identifiable trifle required

for standing from a decision that will forever foreclose that opportunity” (internal




                                             46
quotation marks and citation omitted)).) That is, boiled to bare essence, the gravamen

of the individual plaintiffs’ dashed-hope injury is that they got their hopes up that a

certain result would occur when they heard that Yerkes was retiring these animals (that

these chimpanzees would go to a sanctuary), but because of Defendants’ actions, that

hoped-for outcome will “never” happen. (Pls.’ Mem. at 51 (emphasis in

original)). Surely any and every person who feels strongly about a course of action that

the government is mulling can make that same assertion—i.e., every concerned outside

observer has similar high hopes for the right outcome—yet it is clear from binding case

law that more than hurt feelings over a defendant’s allegedly wrong (or even illegal)

policy choices is required for a plaintiff to have Article III standing to sue. See Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998) (“By the mere bringing of

his suit, every plaintiff demonstrates his belief that a favorable judgment will make him

happier . . . . [, but] that psychic satisfaction . . . does not redress a cognizable Article

III injury.” (citation omitted)); In re Navy Chaplaincy, 534 F.3d at 763 (“[M]ere

personal offense to government action does not give rise to standing to sue.” (citation

omitted)). It is clear to this Court that, underneath the creative packaging, the

individual plaintiffs’ dashed-hopes injury is really nothing more than “an ethical or

moral objection” and, thus, “cannot by itself provide a basis for standing.” Sunstein,

supra, at 1354. 15

        The additional fact that these individual plaintiffs’ sanctuary hope was especially

well informed and well founded due to their prior personal relationships with the


15
  Because the injury is not cognizable, Plaintiffs’ vacil lation between characterizing it as present or
imminent injury is of no moment. (Compare Pls.’ Reply at 44 (claiming their “interests are greatly
impaired by the FWS’s decision” (emphasis added)) , with Pls.’ Mem. at 51 (claiming these injuries are
“imminent” (internal quotation marks omitted)).)


                                                   47
chimpanzees at issue adds nothing to the standing equation. To understand why this is

so, imagine a former employee of a government agency who hears that his former

department is being restructured and has very strong feelings (based on personal

knowledge) about how that goal is best accomplished. In this Court’s view, that

individual has no more of a personal stake in the outcome of that decisionmaking

process than a person who has never worked in the office but would like to apply for a

job there and hopes (based on what he reads in the newspaper) that the agency makes

the right call. In other words, no matter how strongly a person feels and how much a

person knows about the stakes and the consequences of a decision that he hopes will be

made in accordance with his values, that knowledge and affinity alone does not entitle

him to claim that the decisionmaker’s contrary policy choice has injured him in fact.

      Plaintiffs’ dashed-hopes theory of injury fails to establish Article III standing on

another ground as well: even if the thwarting of one’s hope of a different outcome

qualifies as a cognizable injury, the hope that was allegedly dashed in the instant case—

the hope that the chimpanzees would go to a sanctuary in the United States and not to a

zoo overseas—was clearly dashed by Yerkes and not by FWS. As Plaintiffs themselves

acknowledge, “Yerkes made clear its decision to relocate these and its other

chimpanzees” (Pls.’ Mem at 52) “many months ago” (id. (citation omitted))—long

before FWS took any relevant actions related to these chimpanzees. The record clearly

demonstrates that Yerkes acted on its own to evaluate its options, and that it decided to

transfer the animals to Wingham rather than a U.S. sanctuary in 2014, when it signed a

contract to that effect. (See Johnson Decl. ¶ 9.). The Wingham-transfer decision was

made by Yerkes before FWS granted the permit, which means that it was Yerkes’




                                           48
placement determination that actually squelched the individual plaintiffs’ hope of

reuniting with the chimps at a sanctuary, not FWS’s subsequent export authorization.

This presents a clear causation problem for the individual plaintiffs, who insist that the

decision to transfer these animals to Wingham rather than a sanctuary is what has

injured them, because they have not, and cannot, demonstrate that the allegedly

injurious transfer decision was made by FWS. See Lujan, 504 U.S. at 560 (stating the

well-established rule that the injury must be “fairly . . . trace[able] to the challenged

action of the defendant, and not . . . th[e] result [of] the independent action of some

third party not before the court” (alterations in original) (internal quotation marks and

citation omitted)); see also Am. Fed’n of Gov’t Emps., AFL-CIO v. Vilsack, 118 F.

Supp. 3d 292, 299, 301 (D.D.C. 2015) (explaining that, when a third party’s conduct “is

the direct cause of the . . . alleged injury[,]” there are “only two categories of cases”

where courts have found standing to challenge government action that regulates that

third party’s conduct: (1) if the government action authorizes otherwise illegal conduct,

or (2) if the record shows “substantial evidence of a causal relationship between the

government policy and the third-party conduct” (internal quotation marks and citations

omitted)). What is more, any attempt to solve Plaintiffs’ causation problem by

modifying the asserted hoped-for outcome—say, by contending that the real dashed

hope of these plaintiffs was hope that FWS would intervene to stop the export plan that

Yerkes had already made (see, e.g., Pls.’ Reply at 47–48 (arguing that “but for the

FWS’s decision” to endorse Yerkes’ Wingham plan, “Yerkes would be sending these

chimpanzees to a U.S. sanctuary”))—leads Plaintiffs right back to the unavailing

argument that the individual plaintiffs’ dismay over the agency’s decision to allow the




                                             49
export to proceed, which allegedly dashed their hopes of a different outcome, is a

cognizable injury in fact for Article III purposes in and of itself. See supra Part III.C.1.

                2.      The Plaintiffs’ Alleged Aesthetic Injury Is Too Speculative To Be
                        Imminent, Or Would Be Self-Inflicted

        Turning to Plaintiffs’ other allegations regarding the alleged aesthetic injury that

the Yerkes export permit allegedly has inflicted (or will inflict) on the individual

plaintiffs, as explained above, Plaintiffs maintain that the individual plaintiffs have a

strong bond with the chimpanzees and that the pending relocation of these animals is an

“imminent” injury to them “because Yerkes has clearly decided to relocate these seven

chimpanzees—i.e., these animals are going somewhere, and, depending on where,

Plaintiffs will either be able to visit and observe them again or never be able to do so.”

(Pls.’ Mem. at 51 (emphasis in original) (internal quotation marks omitted).) 16 If

Plaintiffs intend to suggest that the transfer of the Yerkes chimpanzees to a zoo in

England will prevent the individual plaintiffs from ever again coming into contact with

these animals, that suggestion is puzzling, since no one has provided the Court with any

reason to think that the individual plaintiffs will be barred from visiting the

chimpanzees at Wingham, and Plaintiffs’ briefing and declarations indicate the

opposite. (See e.g., id.; Weiss Decl. ¶ 10.) In any event, it appears that this claim of

injury is actually rooted in what Plaintiffs say will likely happen if they do visit


16
  This Court’s analysis addresses only the alleged aesthetic injuries that Plaintiffs have proffered in
their motion for summary judgment as a basis for standing and that appear to be within the scope of the
complaint’s allegations of fact. The additional claims that some of the declarants make —
e.g., Hare’s claims that the export will hurt him because he knows that, if Wingham breeds the
chimpanzees, the babies “will add to the already burgeoning surplus of chimpanzees in Europe that
need homes,” and that, if Wingham places any of the babies in its hands -on programs for children it
would “foster the highly detrimental pet and entertainment trade in chimpanzees[.]” (Hare Decl. ¶¶ 27–
28 (emphasis in original); see also id. ¶ 24 (Hare claiming that he will be harmed if “some but not all of
the chimpanzees are sent to Wingham”))—have not been adopted by Plaintiffs in support of their
standing arguments, and thus, this Court has not considered them.


                                                   50
Wingham and see these chimpanzees again: that they will inevitably view the

chimpanzees they love “in harmful conditions” and as a result will suffer “aesthetic and

emotional distress[.]” (Compl. ¶ 22; id. ¶ 25; see also Hare Decl. ¶¶ 21, 25 (claiming

he would like to visit the chimpanzees again in a “humane setting” and “will be injured

when [he sees] Wingham’s untrained, inexperienced staff mishandl[ing] and

mismanag[ing]” the animals, causing them to behave in “unnatural, aberrant” ways);

Weiss Decl. ¶ 10 (claiming that if the permit is issued she “will have to travel to

England to see” the chimpanzees and “will only be able to observe [them] acting

unnaturally” in an environment of which she disapproves, and “will be injured by

seeing the physical and psychological manifestations of the stress and trauma

experienced by the chimpanzees from living in an unnatural and inhumane

environment”).)

       In this Court’s view, these claims of aesthetic injury fail for at least two reasons.

First of all, they seem to be entirely speculative; on the instant record, there is no

evidence that any of these individual plaintiffs actually have plans to go to Wingham to

see these animals. One plaintiff (Feuerstein) never even suggests that she might visit

the chimpanzees if they are exported. (See generally Feuerstein Decl.) Hare says only

that “[i]f” he visits Wingham, harm will occur (Hare Decl. ¶ 25), which is just to say

that his visit is “possible[,]” and such a representation is not only insufficient for

imminence, Clapper, 133 S. Ct. at 1147 (emphasis omitted) (internal quotation marks

and citation omitted), it does not come close to the kinds of representations that other

successful aesthetic-injury plaintiffs have made, see, e.g., Ringling Bros., 317 F.3d at

337–38 (plaintiff who had bonded with particular elephants was permitted to proceed




                                             51
beyond the motion-to-dismiss stage largely because he averred that he would actually

visit the circus and see elephants exhibiting signs of mistreatment due to the abusive

practices). Weiss goes the farthest, claiming that, if the export goes forward, she “will

have to travel to England” to see the chimpanzees. (Weiss Decl. ¶ 10 (emphasis

added).) But she offers nothing beyond say-so on that front; she does not contend, for

example, that she has already purchased tickets to Wingham or has concrete plans to do

so soon after the chimpanzees are exported. And at this stage of the litigation, in the

absence of any such evidence, she articulates precisely the sort of “‘some day’

intention[]—without any description of concrete plans, or indeed even any specification

of when the some day will be”—that the Supreme Court has rejected as insufficient to

establish imminent injury. Lujan, 504 U.S. at 564 (emphasis omitted) (citation

omitted); see also Summers, 555 U.S. at 496 (finding at the summary judgment stage

that a plaintiff’s “vague desire to return” to forest areas he wished to protect was not

sufficient to demonstrate standing).

       Compounding Plaintiffs’ imminence problem is the fact that the record lacks

sufficient evidence to support their contention that Wingham’s caregivers will

inevitably house the chimpanzees in “inhumane” conditions and will mistreat the

animals to such a degree that these individual plaintiffs will see this if they travel there

and be personally affected. In the Ringling Brothers case, the plaintiff was a former

employee of the defendant circus organization who was suing to enjoin the

organization’s use of certain elephant-training methods he disliked; importantly, he had

actually witnessed the abusive treatment of the animals that he said he would like to see

again (and had been, he said, aesthetically injured by the animals’ reactions to said




                                             52
treatment), which supported the inference that the abusive practices the plaintiff

challenged had unquestionably occurred and were likely to continue. See 317 F.3d at

335. Under those circumstances, and given the fact that the case was at the motion-to-

dismiss stage, the D.C. Circuit appeared to assume (without expressly holding) that the

alleged aesthetic injury to the plaintiff was not speculative. See id. at 337 (noting that

plaintiff’s claim that he would “like to ‘visit’ [the animals] again ” to rekindle his

relationship was somewhat vague, but that “a fair construction of his allegation

encompass[ed his] attending the circus as any member of the public would,” from which

“vantage point he might observe” the effects of mistreatment, which he “claim[ed] he

would recognize based on his experience working at [the circus]”). Here, by contrast,

we are at the summary judgment stage, yet Plaintiffs have not shown that mistreatment

of the Yerkes chimpanzees is inevitable or even highly likely when they are transferred

into Wingham’s custody and, indeed, other than making sweeping assertions about the

extent to which these chimpanzees will be put in danger (which Yerkes strenuously

denies (see Yerkes’s Mot. at 15–17)), Plaintiffs provide few specifics about the

particular acts of abuse that they claim they will witness to their detriment.

        To be sure, Plaintiffs say that the chimpanzees will not be safe in the hands of

Wingham’s staff; their briefs and declarations describe Wingham’s employees as

abusive neophytes who are intent upon displaying the animals in a harmful commercial

environment and breeding them in perpetuity. (See, e.g., Hare Decl. ¶¶ 21, 25.) But

this Court need not accept these bald representations. 17 And the record is devoid of


17
  At this stage “a party can no longer rest on mere a llegations, but must set forth by affidavit or other
evidence specific facts.” Fed. Forest Res. Coal., 100 F. Supp. 3d at 34 (quoting Clapper, 133 S. Ct. at
1148–49); see also Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462,
466 (D.C. Cir. 2009) (“The object of [Rule 56(e)’s ‘specific facts’ requirement] is not to replace


                                                    53
actual evidence that would support an inference that these animals will likely be

mistreated, which Plaintiffs need if the individual plaintiffs’ assertions that they will

see the chimpanzees in inhumane conditions if they travel to Wingham are going to

constitute a sufficiently imminent injury for Article III purposes. See Clapper, 133 S.

Ct. at 1147 (holding that an imminent injury must be “certainly impending” to serve as

an injury in fact (internal quotation marks and citation omitted)). Thus, just as in other

cases in which courts have rejected “multi-tiered speculation” from plaintiffs who were

claiming imminent injury, GrassRoots Recycling Network, Inc. v. EPA, 429 F.3d 1109,

1112 (D.C. Cir. 2005) (internal quotation marks and citations omitted), and have

frowned on “standing theories that rest on speculation about the decisions of

independent actors[,]” Clapper, 133 S. Ct. at 1150 (citation omitted); see also Lujan,

504 U.S. at 562; Williams v. Lew, 819 F.3d 466, 473 (D.C. Cir. 2016), this Court, too,

must conclude that the individual plaintiffs’ alleged aesthetic harm is not “certainly

impending[,]” Clapper, 133 S. Ct. at 1147 (internal quotation marks and citation

omitted).

        Finally, it also clear to this Court that, unless these individual plaintiffs can

somehow make a persuasive claim that a trip to England to see these chimpanzees is

inevitable, it will be difficult for them to establish that the resulting injury to their

aesthetic sensibilities is not a self-inflicted wound. Put another way, this Court finds it



conclusory allegations of the complaint or answer with conclusory allegations of an affidavit .”
(alteration in original) (internal quotation marks omitted) (quoting Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 888 (1990)); Feld, 659 F.3d at 27 (rejecting as insufficient at the summary judgment stage
the plaintiff’s claims that causation could be demonstrated by “logic” where plaintiff failed to offer
“specific facts” supporting that “logic”). Furthermore, accepting the merits of the APA-related claims
that have been brought in this case does not require blindly assuming that the exported chimpanzees
will, in fact, be subject to abuse.



                                                  54
hard to believe that a plaintiff whose presence at the place that he says will injure him

aesthetically is not compelled (e.g., someone who does not live or work in the vicinity,

nor has any history of traveling there, and is not otherwise required to be there) can

complain that he will be injured by what he sees if he makes the trip, because it is well

established that an injury one brings upon oneself is not a cognizable injury that has

been caused by the defendant’s conduct. See Nat’l Family Planning & Reproductive

Health Ass’n, Inc. v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006) (explaining that

self-inflicted harm can neither be deemed “an injury cognizable under Article III” nor

“fairly traceable to the defendant’s challenged conduct” and denying standing to an

“association [that had] chosen to remain in the lurch” (emphasis in original) (internal

quotation marks and citations omitted)).

        In sum, this Court concludes that Plaintiffs’ dashed-hopes theory is not a

cognizable injury in fact, the individual plaintiffs’ alleged aesthetic injury has not been

shown to be sufficiently imminent, and that, in any event, neither of these harms is

fairly traceable to the permitting decision the individual plaintiffs seek to challenge.

Thus, Plaintiffs have offered no persuasive reason that the individual plaintiffs have

standing to attack the Yerkes export permit in federal court.

        D.      This Court Cannot Reach The Merits Of Plaintiffs’ Claims 18

        Having determined that no plaintiff has Article III standing because none has


18
  Plaintiffs have asserted the same informational, organizational, and aesthetic injuries with respect to
all of their challenges to the export permit; therefore, the insufficiency of these injury contentions
marks the end of their ability to press any of these claims in this Court. That said, in a footnote at the
conclusion of their opening brief, Plaintiffs have also made cryptic statements regarding “procedural”
standing. (See Pls.’ Mem. at 53 n.43 (“Because they all have an independent substa ntive basis for
standing, NEAVS and the individual Plaintiffs also have standing to bring their NEPA and [ESA]
Section 7 claims, without having to show that if the agency had complied with those statutory
requirements it would not have allowed the export t o proceed.” (emphasis omitted) (citing Lujan, 504
U.S. at 572 n.7)).) Plaintiffs appear to be seeking to invoke the rule that courts “relax the normal


                                                    55
suffered a cognizable injury in fact under any of the theories Plaintiffs have proposed,

this Court cannot reach the merits of the instant complaint’s non-FOIA-related counts.

It is lamentable that Plaintiffs’ concerns about this particular export permit, and the

way in which FWS appears to have interpreted the ESA to authorize it, cannot be vetted

by a federal court at this time—or likely ever, given Yerkes’s representation that it

plans to “complete the export before the November 1, 2016 permit expiration date if the

permit is affirmed” (Notice, ECF No. 55, at 1))—because, on the merits, Plaintiffs’ case

raises significant legal issues regarding whether or not the ESA actually authorizes

FWS to permit the exportation of endangered species whenever the agency can

somehow conceive of a way in which the act of granting the permit (as opposed to

allowing the permitted activity) benefits the species of animal that is being exported.

        Among the many important questions that a court considering the merits of

Plaintiffs’ APA claims would face is whether the deference to an agency’s statutory

interpretation that the Supreme Court established in Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), is even applicable to the

informal adjudication that resulted in FWS’s enhancement finding. See Barnhart v.

Walton, 535 U.S. 212, 222 (2002); United States v. Mead Corp., 533 U.S. 218, 230–31

(2001). And even if it is, the Chevron test requires a court to determine whether the




standards of redressability and imminence[,]” Sierra Club v. FERC, No. 14-1249, 2016 WL 3525562, at
*3 (D.C. Cir. June 28, 2016) (citation omitted), when a plaintiff alleges an impingement on its
procedural interests, but they make no other mention of “procedural” standing, and this Court declines
to address the argument because “perfunctory and undeveloped arguments . . . are deemed waived[,]”
XP Vehicles, 156 F. Supp. 3d at 192 n.2 (alteration in original) (internal quotation marks and citation
omitted). In any event, the relaxed redressability requirement has no relevance to this Court’s
conclusion that no plaintiff has a cognizable injury in fact, and none of the allegedly imminent injuries
would be aided by any permissible relaxation of that standard.




                                                   56
statute that the agency has interpreted to authorize its actions really does so, see Vill. Of

Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011), which

appears to be a heavy lift for FWS in this case, at least as far as it has determined that

the ESA allows the agency to find Section 10’s “enhancement” requirements satisfied

upon nothing more than the permittee’s promise to donate money to an unrelated

conservation effort. The plain language of Section 10(a) does not say this, and FWS’s

broad interpretation appears to thwart the dynamic of environmental protection that

Congress plainly intended when it mandated that no export of endangered species be

allowed, see 16 U.S.C. § 1538, unless the agency permits such export pursuant to

certain specified circumstances, see id. § 1539(a). FWS essentially urges the Court to

read those circumstances out of the statute, such that Section 10(a)’s enhancement-

finding requirement actually places no meaningful constraints on FWS’s ability to

authorize prohibited activities, because, as a practical matter, the agency can always

condition the granting of a permit on the permittee’s undertaking some other act that

advances scientific knowledge or benefits the species, regardless of the intentions of the

permittee with respect to the particular animals it seeks to access and/or the permittee’s

avowed lack of interest in furthering the species as a whole. 19

        This is all to say that the significant degree of fervor that has accompanied

Plaintiffs’ written and oral arguments in this case is entirely understandable, and that


19
  This Court sought to explore the limits (if any) of FWS’s interpretation of Section 10(a) during the
oral argument that it held on Plaintiffs’ motion for a preliminary injunction. The Court asked, for
example, whether, “[a]s long as Michael Jackson gives . . . $45,000” to some third party to be used
ostensibly to enhance the propagation of the species, FWS could gra nt him (or some other rich
dilettante) an export permit. (Tr. of P.I. Hr’g, ECF No. 29, at 100:1 –4.) In response, counsel for FWS
admitted that the agency’s view of the statute would allow for such a grant. ( Id. at 100:5–12, 24–25,
101:1–9.) What remained unclear—and what a court considering the merits of Plaintiffs’ claims would
have to determine—is whether authorizing FWS to barter export permits in this fashion was truly what
Congress intended Section 10(a) to authorize.


                                                  57
Plaintiffs have ably made the persuasive argument that, far from viewing Section 10(a)

as a limit on the circumstances in which the permitting of activities that impact

endangered species can occur, FWS now apparently views that provision as a green

light to launch a permit-exchange program wherein the agency brokers deals between,

on the one hand, anyone who wishes to access endangered species in a manner

prohibited by the ESA and has sufficient funds to finance that desire, and on the other,

the agency’s own favored, species-related recipients of funds and other services. This

Court considers doubtful FWS’s insistence that, when Congress penned Section 10(a) it

intended to authorize the agency to ‘sell’ its permits in this fashion so long as the

affected species might (as a whole) be conceived of as benefitting from the exchange.

But the Court cannot evaluate and rule upon the merits of Plaintiffs’ contentions, or

FWS’s responses, because the constraints of Article III standing prevent it from

reaching the merits of the important questions of statutory interpretation and

administrative law that have been presented in this case, as explained above.


IV.    CONCLUSION

       To avoid “stepp[ing] where the Constitution forb[ids] it to tread[,]” Hancock v.

Urban Outfitters, Inc., No. 14-7047, 2016 WL 3996710, at *2 (D.C. Cir. July 26, 2016),

a federal court must evaluate standing to sue before delving into the merits of a case —

even when the case involves troubling claims of potential harm to protected animal

species. This Court’s examination of the alleged (human and organizational) injuries

that Plaintiffs here say FWS’s decision to issue an export permit to Yerkes purportedly

has caused leads it to the conclusion that none of the Plaintiffs has a cognizable injury

in fact, and thus, this Court does not have subject-matter jurisdiction to address



                                            58
Plaintiffs’ claims or to order the relief that Plaintiffs seek. See Scenic Am., 2016 WL

4608153, at *4 (explaining that, at summary judgment, if “the plaintiff has not

introduced sufficient evidence into the record to at least raise a disputed issue of fact as

to each element of standing, the court has no power to proceed and must dismiss the

case” (citation omitted)). Notably, this Court’s determination rests solely on its

understanding of what binding legal precedents dictate regarding the requirements of

Article III standing; it is clear beyond cavil that “standing is not measured by the

intensity of the litigant’s interest or the fervor of his advocacy[,]” Valley Forge, 454

U.S. at 486, nor is it measured by the importance of the issues presented or the potential

that the plaintiff might prevail on the merits of his claims, if the Court had the power to

reach them.

       Accordingly, as set forth in the order accompanying this opinion, Plaintiffs’

partial motion for summary judgment is DENIED, and Defendants’ and Yerkes’s partial

motions for summary judgment are GRANTED. Plaintiffs’ FOIA claim (Count V of

the complaint) persists, but all of Plaintiffs’ other claims (Counts I–IV) must be

dismissed.

DATE: September 14, 2016                  Ketanji Brown Jackson
                                          KETANJI BROWN JACKSON
                                          United States District Judge




                                             59
