## Facts

- The Marine Mammal Protection Act of 1972 (MMPA) imposed a moratorium on taking or importing marine mammals and marine mammal products, subject to limited waivers and permits administered by the National Marine Fisheries Service (NMFS).
- Fouke Company sought a waiver and import permit to bring Cape fur sealskins from South Africa’s annual harvest into the United States.
- NMFS waived the moratorium and issued implementing regulations, conditioning the waiver on an annual South African harvest cap of 70,000 seals.
- Environmental and animal-welfare organizations opposed the waiver and challenged it in court.
- Plaintiffs alleged the waiver and related approvals violated the MMPA by permitting imports of (1) seals less than eight months old, (2) nursing seals, (3) seals taken inhumanely, and (4) seals taken under a foreign program not consistent with the MMPA.
- The district court dismissed for lack of standing.
- On appeal, the government argued the dispute was moot due to failure of the harvest-year condition, but the waiver remained operative for future harvests unless revoked or revised.

## Issues

1. Whether the plaintiff organizations had Article III standing to challenge the federal waiver and associated certification/permit actions under the MMPA.
2. Whether the waiver and implementing approach unlawfully permitted importation of seals less than eight months old in violation of the MMPA.
3. Whether the waiver unlawfully permitted importation of seals nursing at the time of taking, and whether the agency could narrow “nursing” by categorizing it as “obligatory” versus “convenience” nursing.
4. Whether the record required invalidation of the agency’s humane-treatment determination under the MMPA.
5. Whether the Secretary could certify South Africa’s sealing program as “consistent” with the MMPA while allowing practices that contravened the MMPA’s express prohibitions.

## Decision

- The court reversed the district court and held plaintiffs had standing based on members’ interests in observing, studying, and protecting marine mammals and in humane treatment.
- The court held the waiver and related regulatory scheme violated the MMPA by allowing importation of seals younger than eight months through an age-calculation method that permitted underage seals.
- The court held the agency’s attempt to narrow the statutory ban on importing “nursing” seals by distinguishing “obligatory” from “convenience” nursing was unauthorized.
- The court upheld the agency’s humane-treatment finding, concluding substantial evidence supported the Director’s determination on the record presented.
- The court held the “consistency” certification for South Africa’s program was invalid because a program permitting underage and nursing seal takes could not be deemed consistent with the MMPA.
- The court rejected mootness based on alleged failure of the 1975 harvest condition because the waiver could affect future harvests.
- The case was remanded for further proceedings consistent with the opinion.

## Legal Principles

- Organizations may establish standing to challenge environmental and animal-protection agency action when members allege concrete aesthetic, conservation, and humane-treatment injuries within the statute’s protected interests, and the injuries are fairly traceable to the challenged action and redressable by judicial relief.
- When Congress sets a clear quantitative statutory prohibition (such as an age limit), an agency may not replace it with an administrative approximation that permits what the statute forbids.
- A statutory term imposing a categorical ban (such as “nursing”) may not be narrowed by agency-created subcategories that lack textual support and conflict with the statute’s protective purpose.
- A foreign-program “consistency” certification under the MMPA requires substantive conformity with the Act’s prohibitions and policies; certification is invalid where the program authorizes practices the Act expressly bars.
- Courts may sustain an agency’s humane-treatment determination when supported by substantial evidence in the administrative record.

## Conclusion

The D.C. Circuit held that animal-welfare organizations had standing to challenge an MMPA import waiver and invalidated the waiver and foreign-program certification to the extent they allowed imports of seals younger than eight months and nursing seals, while sustaining the agency’s humane-treatment finding and remanding for further proceedings.


Animal Welfare Inst. v. Kreps, 561 F.2d 1002 (D.C. Cir. 1977)