On June 3, 2016, the U.S. Court of Appeals for the D.C. Circuit held in Friends of Animals v. Jewell (No. 1:14-cv-00357) that Plaintiff Friends of Animals (“Plaintiff”) had Article III standing to pursue a constitutional claim on the ground of informational injury.  The court, however, rejected the merits of Plaintiff’s challenge to a U.S. Fish and Wildlife Service (“FWS”) regulation establishing a limited exemption from the Endangered Species Act’s (“ESA”) section 9 take prohibition for three antelope species (scimitar-horned oryx, Oryx dammah; addax, Addax nasomaculatus; and dama gazelle, Gazella dama).  The D.C. Circuit’s decision expands the U.S. Supreme Court’s holding in FEC v. Akins, 524 U.S. 11, 21 (1998), providing that a plaintiff suffers injury-in-fact when the plaintiff fails to obtain information that must be publicly disclosed pursuant to a statute.  Under the D.C. Circuit’s ruling, informational injury may also exist where a statutory enactment negates a plaintiff’s right to information.

In 2005, FWS listed the antelope species as endangered throughout the world and on that same day issued a final regulation exempting entities and individuals that breed antelope species for sport hunting programs from the ESA’s section 9 take prohibition.  Under the exemption, FWS allowed qualified owners of domestic, captive-bred antelope to engage in activities otherwise constituting prohibited take without applying for individual permits on a case-by-case basis.  Oryx, addax, and dama gazelle are native to northern Africa and are believed to be extirpated in the wild, although a substantial number of individuals exist in captivity.

In 2009, a district court invalidated the exemption as contrary to the ESA’s section 10 incidental take permit program.  The district court’s decision was rendered obsolete in 2014 under the Consolidated Appropriations Act of 2014 (“Appropriations Act”), directing FWS to reinstate the exemption.  FWS reinstated the exemption in accordance with Congressional mandate in March 2014.

Plaintiff challenged the reinstated exemption on the grounds that the relevant provision of the Appropriations Act violates the constitutional separation of powers.  Plaintiff also challenged the exemption under the Administrative Procedure Act (“APA”), arguing that FWS’ action to reinstate the exemption was contrary to ESA section 10.

Reversing the district court, the D.C. Circuit held that Plaintiff had standing to pursue the constitutional claim on the ground of informational injury.  The court reasoned that the Appropriations Act denied Plaintiff information that would have otherwise been made available under ESA section 10.  As such, the D.C. Circuit concluded that Plaintiff demonstrated injury-in-fact.

While Plaintiff’s prevailed on procedural grounds, the D.C. Circuit denied Plaintiff’s claims on the merits, holding that “Congress undoubtedly may change the precedential value of a decision by passing prospective legislation.”  The Court also held that FWS complied with the APA when it reinstated the exemption.