We are asked to decide whether the world’s cetaceans have standing to bring suit in their own name under the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the administrative Procedure Act. We hold that cetaceans do not have standing under these statutes.I. Background
The sole plaintiff in this case is the Cetacean Community (“Cetaceans”). The Cetacean Community is the name chosen by the Cetaceans’ self-appointed attorney for all of the world’s whales, porpoises, and dolphins. The Cetaceans challenge the United States Navy’s use of Surveillance Towed Array Sensor System Low Frequency Active Sonar (“SURTASS LFAS”) during wartime or heightened threat conditions. The Cetaceans allege that the Navy has violated, or will violate, the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. §§ 1371-1421h, and the National Environmental Policy Act (“NEPA”), 16 U.S.C. §§ 4321-4347.
The Navy has developed SURTASS LFAS to assist in detecting quiet submarines at long range. This sonar has both active and passive components. The active component consists of low frequency underwater transmitters. These transmitters emit loud sonar pulses, or “pings,” that can travel hundreds of miles through the water. The passive listening component consists of hydrophones that detect pings returning as echoes. See 67 Fed. Reg. 46,712-16 (explaining SURTASS LFAS in more detail); 67 Fed. Reg. 48,145-48 (same).
Through their attorney, the Cetaceans contend that SURTASS LFAS harms them by causing tissue damage and other serious injuries, and by disrupting biologically important behaviors including feeding and mating.
The Cetacean Community v. George W. Bush, No. 03-15866 (9th Cir.) (J. William A. Fletcher).