Court Tosses PETA Suit Over Federal Permits

(CN) - The government need not face claims that it illegally granted animal export and import permits without giving activists due notice to contest them, a federal judge ruled.

The U.S. Fish and Wildlife Service issued fifteen permits to the Hawthorn Corporation to export tigers on May 9, 2013. Though the agency usually issues such permits for three years, Hawthorn's permits expired on October 31, 2013 and were not renewed.

People for the Ethical Treatment of Animals (PETA) challenged the permits in August 2013, claiming Fish and Wildlife did not post notice ten days before issuing the permits as required under the Endangered Species Act, and habitually "grant[s] permits illegally," the ruling states.

Fish and Wildlife moved to dismiss for lack of standing and failure to state a claim. It also argued that PETA's claims were "moot."

U.S. District Judge Royce C. Lamberth in Washington, D.C. sided with Fish and Wildlife and dismissed PETA's complaint.

PETA's deputy general counsel Delcianna Winders told Courthouse News that the ruling will not stop the group from challenging Fish and Wildlife's policy of issuing permits to companies t hat export endangered species for use in circuses.

"The good news for tigers is that the FWS has not reissued permits to Hawthorn, so for now at least these tigers will not be hauled abroad in tiny enclosures and forced through the threat of punishment to engage in unnatural acts such as hopping on two legs and jumping through rings of fire," Winders wrote.

Judge Lamberth with Fish and Wildlife that PETA's claims became moot when the permits at issue expired.

PETA had asked the court to amend the permits so they expired soon after the court issued its decision, to confiscate the tigers Hawthorn exported to Canada, and to order Fish and Wildlife not to renew Hawthorn's permits.

"This, of course, is impossible," since the permits already expired, all of the tigers have been returned to the United States, and Fish and Wildlife previously refused to extend the permits, the ruling states.

PETA's argument that Fish and Wildlife "voluntarily ceased the offending conduct in an attempt to moot this case" also fail because the permits expired without any action taken by Fish and Wildlife, according to the ruling.

Since the agency has declined to renew Hawthorn's permits in the nine months since they expired, and its own regulations do not allow it to amend expired permits, PETA's claims that Fish and Wildlife voluntarily stopped the offending action also fails, the ruling states.

PETA pointed to the ruling in Weinstein v. Bradford to support its argument that Fish and Wildlife's issuance of the permits was both repetitive and evaded review because of their short duration.

Judge Lamberth was not persuaded, finding that PETA fell short in proving typicality.

"Hawthorn has been involved in 95 permitting applications with FWS [Fish and Wildlife] over the past years, but only 21 of those actions had durations of less than three years," he wrote. "Removing the permits at issue in this case, only 6 of the remaining 80 actions had durations of less than three years. This, of course, is not remotely typical, and one need only look at common usage to see it; no one would state, for example, that a baseball player who hits successfully in only 21 out of 95 at-bats (producing a batting average of .221, which would be among the worst in the league) 'typically' gets a hit. Thus, because this is not a typical duration for this action, it is not capable of repetition, yet evading review" (parentheses in original).

Lamberth said PETA erred by claiming Fish and Wildlife's treatment of the Hawthorn permits is proof of an underlying pattern of policy.

"PETA's bare assertions that FWS has a pattern and practice of failing to provide notice and of utilizing pay-for-play cannot suffice to meet any sort of pleading standard, backstopped as they are with only the assertions in the Declaration of Delcianna Winders in Support of Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss," he wrote.

A sworn declaration from one person is simply not enough to prove that an agency does not follow its own policies, the ruling states.

Lamberth likened the present case to the City of Houston, Texas v. Department of Housing and Urban Development, in which the court found the plaintiff's claims to be unripe because there dispute was not yet sufficiently concrete.

Here, PETA's claims that Fish and Wildlife has a pay-to-play policy are unripe because Fish and Wildlife not only denies it, but points out that PETA cannot identify any document or other source proving its existence, the ruling states.

Lamberth was also skeptical about the level of hardship PETA claimed to face from the alleged pay-to-play policy.

That policy "does not affect PETA concretely in any way - indeed, PETA's claims for standing in this case are based on informational standing (which deals exclusively with the lack of notice, and not the issuance of the permits themselves) and organizational injury," the ruling states. "The organizational injury is based on PETA having to spend money to fight this kind of permit. But the court seriously doubts that PETA would be fine with Hawthorn using endangered tigers in circuses, as long as Hawthorn did not use 'pay-for-play' to get the permits - that seems entirely contrary to PETA's mission. In sum, the hardship to PETA be [sic] denying review of the alleged 'pay-for-play' program would amount to nothing - PETA would still spend money to contest the issuance of permits at all. A hardship that minimal cannot overcome this challenge's lack of suitability for judicial review."

The court could not determine whether the alleged pay-to-play policy exists, but said that PETA can defeat mootness by showing typicality if another case arises.

"PETA may have legitimate complaints about the lack of notice, but this case - where the underlying agency action is moot and there are only bare allegations of pattern and practice - is not the proper venue for them," Lamberth wrote.

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