[00:00:00] Speaker 03: Case number 20-5151, Laurie Marino, Ph.D. [00:00:04] Speaker 03: et al. [00:00:05] Speaker 03: at Balance, Whale and Dolphin Conservation vs. National Oceanic and Atmospheric Administration et al. [00:00:11] Speaker 03: Ms. [00:00:12] Speaker 03: Lewis for the at Balance, Ms. [00:00:13] Speaker 03: Engels for the at Police. [00:00:15] Speaker 00: Ms. [00:00:15] Speaker 00: Lewis, good morning. [00:00:17] Speaker 05: Good morning, Your Honors, and may it please the Court, Elizabeth Lewis for the Plaintiffs. [00:00:22] Speaker 05: The principal issue in this case is whether plaintiff's well-pled allegations are sufficient to support their challenge to NIMSA's decision to no longer collect important data concerning the health and welfare of captive cetaceans. [00:00:36] Speaker 05: Accepting plaintiff's allegations is true. [00:00:39] Speaker 05: There can be no doubt that plaintiff's complaint meets the plausibility standard. [00:00:44] Speaker 00: Let me ask you about these allegations, about the existence of the report to begin with. [00:00:51] Speaker 00: Is it clear from the record [00:00:53] Speaker 00: that a necropsy report was even prepared by APHIS or APHIS? [00:01:02] Speaker 05: Your honor, APHIS is not the agency that would be preparing the reports. [00:01:07] Speaker 05: The reports would be prepared by the permit holders, and that is standard. [00:01:12] Speaker 00: I'm sorry, you're right. [00:01:13] Speaker 00: OK. [00:01:14] Speaker 00: Is there such a report? [00:01:15] Speaker 00: Do we know from the record? [00:01:17] Speaker 05: We do not know for certain from the record. [00:01:21] Speaker 05: We have alleged that there is a report this is standard veterinary practice and according to the terms of the permit, these necropsy provisions, the permit holders are required to prepare and submit a report to NIMS upon the death of the animal. [00:01:37] Speaker 05: And that's, you know, the issue of the case is whether [00:01:42] Speaker 05: NIMH's decision to no longer collect these reports is whether the agency has explained its decision adequately and whether have plaintiffs have standing to challenge that decision. [00:01:57] Speaker 05: And the court, we asked this court to reverse the ruling below for two principal reasons. [00:02:05] Speaker 05: First, that the plaintiffs have established standing by alleging concrete and demonstrable injuries to their professional and organizational interests. [00:02:14] Speaker 05: And second, that plaintiffs appropriately challenged final agency action. [00:02:19] Speaker 05: To the first point, considering the complaint and the light most favorable to plaintiffs, plaintiffs alleged injuries fall well within this court's standing precedence. [00:02:29] Speaker 05: Standing as the fundamental question, what's it to you? [00:02:32] Speaker 05: And plaintiffs have clearly answered by explaining how NIMSA's decision to no longer collect these necropsy reports harms them in concrete and specific ways. [00:02:42] Speaker 05: For example, the individual plaintiffs are scientists and marine mammal experts who study the impacts of captivity on cetaceans. [00:02:51] Speaker 05: To study the effects of captivity, plaintiffs rely on the key and rare data that are contained in these necropsy reports. [00:02:59] Speaker 05: NIMPS used to collect those data, which were then available to plaintiffs and others in the field. [00:03:04] Speaker 05: However, in March 2017, NIMPS announced that it would no longer collect certain necropsy reports. [00:03:10] Speaker 05: And because NIMS no longer collects these reports, plaintiffs cannot access the important data that are contained therein. [00:03:17] Speaker 05: As a result, plaintiff science suffers. [00:03:20] Speaker 05: They find it difficult to pursue their chosen research questions, advocate for cetacean welfare and conservation, develop improved standards of care, and generally contribute to the scientific discourse to achieve better data-driven outcomes for cetaceans, both in captivity and in the wild. [00:03:36] Speaker 05: This is clearly a concrete and particularized injury in fact, and indeed it is difficult to conceive it of an injury more personal than one to plaintiff's abilities to participate in their chosen professional field. [00:03:49] Speaker 05: Individual plaintiffs also explained that even as NIMS's decision that it would no longer collect the necropsy reports rendered them unable to obtain the data that's vital to their research, industry affiliated scientists retain unfettered access to the data and are able to and do publish papers that are not subjected to peer review and draw conclusions that are scientifically questionable. [00:04:09] Speaker 05: And before NIMS decided that it would no longer collect the data, plaintiffs were able to access many of the same data [00:04:18] Speaker 05: As explained under the terms of these permits, the permit holders were required to submit these reports to the agency, which, as the complaint alleges, were then made available to experts in the field. [00:04:28] Speaker 05: And without access to those same data, plaintiffs faced considerable difficulties when attempting to respond or dispute industry scientists' assertions and conclusions. [00:04:38] Speaker 05: And as a result, their voices within their field are diminished. [00:04:41] Speaker 05: And this injury is highly analogous to the competitive injuries that are suffered, for example, by political actors where the score is recognized that the relative diminution in a candidate's political voice may qualify as a sufficiently concrete and particularized injury for standing purposes. [00:04:58] Speaker 05: Plaintiffs likewise here are competitively disadvantaged as compared to industry affiliated scientists as a direct result of NIMS's decision. [00:05:06] Speaker 05: Individual plaintiffs clearly alleged specific ways in which NIMS's decision injured their professional interests in conducting high quality scientific research, contributing to their field and advancing their own research endeavors. [00:05:19] Speaker 05: These injuries stem directly from and thus are caused by NIMS's decision to no longer collect the bankruptcy reports. [00:05:26] Speaker 02: I mean, your prayer for relief in this case is a little bit, [00:05:33] Speaker 02: peculiar, let's say, difficult to see how that's going to solve this problem. [00:05:41] Speaker 02: You want to vacate the decision, as you'd call it, saying we don't have authority to do this anymore, and vacate the policy pattern and practice invoking and applying that decision. [00:06:00] Speaker 02: So then what happens? [00:06:03] Speaker 05: Well, Your Honor, the agency would have to explain its view. [00:06:09] Speaker 05: It would have to explain its position as to why the amendments to the statute, the 1994 MPA amendments, extinguished those permit provisions. [00:06:21] Speaker 05: To date, the agency has not ever explained this position. [00:06:25] Speaker 05: They've said that they've prepared a legal memorandum. [00:06:30] Speaker 05: They say that they [00:06:34] Speaker 05: you know, have made this decision, but they have not offered any explanation further in Akins, where the plaintiff challenged a general enforcement policy. [00:06:47] Speaker 05: Redressability was not defeated simply because the agency could reach the same result via a different method. [00:06:56] Speaker 02: One of your clients has a FOIA case pending, correct? [00:07:01] Speaker 05: They did, Your Honor. [00:07:03] Speaker 02: Does it request the legal opinion? [00:07:06] Speaker 05: It did, Your Honor. [00:07:07] Speaker 05: Yes. [00:07:10] Speaker 02: Okay. [00:07:11] Speaker 02: Where does that case stand at this point? [00:07:14] Speaker 05: At this point, plaintiff's request for the memorandum was denied. [00:07:21] Speaker 05: It was withheld under Exemption 5, I believe. [00:07:24] Speaker 02: Is that a final decision? [00:07:26] Speaker 05: Yes, Your Honor. [00:07:28] Speaker 02: So is that on appeal? [00:07:30] Speaker 05: No, Your Honor. [00:07:31] Speaker 02: Will it be appealed? [00:07:32] Speaker 05: No, your honor. [00:07:35] Speaker 02: So the what was the ground for denying you access? [00:07:39] Speaker 05: It was attorney work product. [00:07:43] Speaker 05: And so it was a judge at Coder Cattelli held that it was appropriately withheld under FOIA. [00:07:51] Speaker 02: So if that's attorney work product somewhere, there's a final document or legal opinion, correct? [00:07:59] Speaker 05: Yes, your honor. [00:08:01] Speaker 05: And go on. [00:08:04] Speaker 05: The email that we've attached in our joint appendix makes reference to that memorandum as the basis for NIMS's decision and application of its policy to plaintiff's request. [00:08:19] Speaker 02: So it's now raised to your decado that you cannot get that opinion. [00:08:24] Speaker 02: Correct. [00:08:26] Speaker 02: And yet that's part of your relief here, is it not? [00:08:30] Speaker 05: We are not asking for the agency's legal opinion or advice. [00:08:37] Speaker 05: We're asking for the agency to explain its policy within the agency's legal opinion. [00:08:44] Speaker 01: The explanation is we have the legal opinion. [00:08:48] Speaker 01: Here's the legal opinion. [00:08:50] Speaker 05: Well, Your Honor, we don't know what's in that legal opinion. [00:08:54] Speaker 05: It could be an evaluation of litigation risk. [00:08:58] Speaker 05: It could be any other legal advice that would be appropriately withheld from the attorney to the client. [00:09:07] Speaker 05: What we are seeking and what the agency has an obligation under administrative law principles to provide is an explanation for its decision, for its enforcement policy. [00:09:18] Speaker 02: So you said in the page, pardon me, at paragraph 60 of your complaint, which is on page 34 of the attorney appendix, about seven lines down or so. [00:09:30] Speaker 02: If NMSF, what do you call it? [00:09:33] Speaker 02: NIMHs determines at any point that the applicant or facility holding the mammal, the marine mammal that is subject to a special exception permit no longer meets those requirements, it may revoke the permit and seize the animal. [00:09:49] Speaker 02: So there's no certainty at all that this litigation will result in actual revocation or enforcement in any way. [00:10:01] Speaker 05: We are not seeking to have any particular permit or animal seized or moved. [00:10:08] Speaker 05: What we are seeking is the information that NIMS is supposed to have in its possession under the terms of the permit, these- Let's go back to the FOIA case. [00:10:19] Speaker 02: So you're seeking, vacating the email and the policy, right? [00:10:27] Speaker 05: Yes, Your Honor. [00:10:28] Speaker 05: the policy, not any permit. [00:10:31] Speaker 02: The policy is to what, not enforce the permits? [00:10:37] Speaker 05: The policy is that NIMS has determined that the 1994 amendments have extinguished these certain permit provisions. [00:10:47] Speaker 05: And because these permit provisions are no longer valid, the, excuse me? [00:10:54] Speaker 02: That's not a policy. [00:10:55] Speaker 02: That's a legal decision. [00:10:56] Speaker 02: What's the policy based on it? [00:10:59] Speaker 05: That is the policy is that nymphs will no longer be requesting or collecting this information. [00:11:06] Speaker 02: Okay, so so if that is vacated. [00:11:12] Speaker 02: It goes we go back to the situation where the agency may revoke the permit right. [00:11:19] Speaker 05: If that's vacated, then the necropsy provisions, these provisions that we're discussing remain valid and remain parts of the permit holder's legal obligations as a condition of holding that animal. [00:11:31] Speaker 05: And therefore, when that animal dies, as Tilikum did, as Kosaka did, then that facility is under an obligation under that still valid provision of its permit to submit this information to the agency as they used to be obligated to do. [00:11:47] Speaker 02: It seems to me that it's very peculiar the way this is framed as to whether it is what's been called in another case of programmatic attack or an attack on specific challenge to I should say specific enforcement decisions. [00:12:05] Speaker 02: If it's a programmatic attack, you have a problem. [00:12:09] Speaker 02: If it's a challenge to specific enforcement decisions, you have a Hector v. Cheney problem. [00:12:14] Speaker 02: So you're slicing the baloney very thin, it seems to me, where you say in here, well, in the way in which this whole thing is framed up. [00:12:24] Speaker 02: trying to, I mean, on one hand, you say at various places, you're not challenging specific instances, correct, of failure to act. [00:12:36] Speaker 05: We aren't challenging the agency's decision not to enforce. [00:12:42] Speaker 05: You know, that is a heckler problem, but in making this decision, the agency didn't rely on its prosecutorial discretion. [00:12:49] Speaker 05: And so this case, you know, it falls under that heckler exception where we are looking at this policy that is being applied in a way that injures plaintiff's interests. [00:13:00] Speaker 02: and want to declare vacate the policy pattern and practice. [00:13:06] Speaker 02: Why isn't that a so-called programmatic attack? [00:13:10] Speaker 05: We aren't attacking or challenging the agency's overall administration of the special exception permit program. [00:13:18] Speaker 05: We are attacking their application of this policy, which we find, which we believe is arbitrary and capricious to the specific [00:13:29] Speaker 05: denials of plaintiffs request in these specific instances, which is the normal course of challenging agency action agents broad agency policies in the EPA context. [00:13:44] Speaker 01: Thank you. [00:13:48] Speaker 01: On the standing. [00:13:50] Speaker 01: At least of the organization, how do you distinguish epic? [00:13:58] Speaker 01: That's an opinion where we spoke at length about Akins, which is the font of informational injury theories. [00:14:11] Speaker 01: We spoke at length about Havens, which is the font of organizational injury theories. [00:14:21] Speaker 01: We spoke at length about PETA, which is I think your best case for organizational standing here. [00:14:30] Speaker 01: And we said pretty clearly that if you don't satisfy AKINS, you don't have an informational injury. [00:14:42] Speaker 01: And if you don't have an informational injury and the harm to the organization is not getting information, [00:14:52] Speaker 01: That's a very good indicator that you don't have organizational standing. [00:14:59] Speaker 05: Well, Your Honor, I would distinguish Epic on two grounds. [00:15:04] Speaker 05: First on the facts. [00:15:06] Speaker 05: The main issue in Epic was not that Epic didn't have a statutory entitlement to that information. [00:15:15] Speaker 05: In fact, the court expressly did not assess that first factor. [00:15:18] Speaker 05: when assessing informational standing. [00:15:22] Speaker 05: The issue was that Epic didn't have a cognizable interest in the information at issue. [00:15:29] Speaker 05: There was a privacy assessment that was focused on protecting individuals. [00:15:34] Speaker 01: Sorry, what would create the cognizable interest on a concrete Article III injury other than a statute like FOIA? [00:15:44] Speaker 05: Well, I mean, if the plaintiff has it's it's more akin to the zone of interest and you can see this analysis actually in the friends of animals versus Bernhardt case where plaintiffs in that case, friends of animals had [00:16:00] Speaker 05: an organizational injury. [00:16:02] Speaker 05: They had organizational standing without any statutory right to that information. [00:16:07] Speaker 05: And in fact, Judge Silverman in a footnote noted that that ship has sailed on the argument that plaintiffs are required to plead a statutory entitlement to the information at issue. [00:16:22] Speaker 01: It's hard for me to see how if you don't have a statutory right to the information, this isn't just a generalized grievance or an ideological interest. [00:16:37] Speaker 05: Well, the other elements of organizational injury do guard against that. [00:16:41] Speaker 05: Organizational injury also requires the plaintiff to prove that there's a direct conflict with the mission, that there's a consequent drain on the resources. [00:16:51] Speaker 05: An organizational plaintiff could not come in and just say that we have been deprived of information that we want and have organizational standing. [00:16:59] Speaker 05: That's not the test. [00:17:00] Speaker 05: The test is that they have to allege a concrete and particularized injury of which [00:17:04] Speaker 05: the deprivation of information can be one, but they also have to allege those other elements, which ensures that the injury is not generalized. [00:17:16] Speaker 01: Could an individual similarly situated to PETA run the same theory, which is to say, okay, I can't cite any statute [00:17:32] Speaker 01: giving me a right to information and all of my harms flow from the failure to get information. [00:17:42] Speaker 01: But you know what, I'm really invested in this issue and I broadcast all of these things on my own as an individual so that failure to provide information harms me as an individual more than John Q. Public. [00:17:59] Speaker 01: Would that be a good theory of standing for the individual? [00:18:02] Speaker 05: Yes, Your Honor. [00:18:03] Speaker 05: And in fact, in the American Friends versus Webster case that is cited in the briefs, that is the exact injury that was alleged. [00:18:10] Speaker 05: The Federal Records Act does not give plaintiffs a right to the information. [00:18:14] Speaker 05: All that provides is that the agency has to collect and retain certain records. [00:18:20] Speaker 05: And so that injury is highly analogous. [00:18:22] Speaker 05: And again, I say that in order to show that the plaintiff is injured, they do have to show that that deprivation [00:18:32] Speaker 05: impacted them in a concrete and particularized way, which is what individual plaintiffs have shown here. [00:18:39] Speaker 05: And it's what the individual plaintiffs in the American Friends case did. [00:18:43] Speaker 01: So any individual with the canonically non-concrete injury of being offended at how the executive branch is conducting its business, [00:18:57] Speaker 01: can create Article III standing just by engaging in an issue and saying, I want to publish this information to expose the maladministration of the program. [00:19:15] Speaker 05: Your honor, I think that, you know, as with all standing questions, it's a highly fact specific question here. [00:19:22] Speaker 05: Your plaintiffs are undisputed experts in their field. [00:19:26] Speaker 01: I'm not questioning their commitment. [00:19:28] Speaker 01: Sure. [00:19:28] Speaker 01: But it just seems like that blows a pretty big hole in some basic standing principles. [00:19:41] Speaker 05: I [00:19:42] Speaker 05: With individual plaintiffs, they have a long-standing demonstrated interest in this topic. [00:19:51] Speaker 05: They've been able to show that they are harmed by this deprivation in very concrete and particularized ways. [00:19:57] Speaker 05: And that is the key. [00:19:59] Speaker 05: And they have a cognizable interest in their career pursuits. [00:20:03] Speaker 05: This court previously has recognized [00:20:06] Speaker 05: plaintiff's interests in maintaining their careers and engaging in their careers. [00:20:11] Speaker 05: And when a government action does impact that, again, you need a final agency action and all the other elements must be satisfied. [00:20:18] Speaker 05: And additionally with reputational injury, that is also well established when all those requirements are satisfied, a plaintiff does has standing to challenge a government action that injures its concrete interests. [00:20:31] Speaker 02: Thank you. [00:20:33] Speaker 00: Judge Ginsburg, do you have any other questions? [00:20:36] Speaker 02: Oh, thank you. [00:20:38] Speaker 00: All right. [00:20:38] Speaker 00: And we'll hear from Miss Engels. [00:20:43] Speaker 04: Good morning, and may it please the court. [00:20:45] Speaker 04: I'm Summer Engels for the Federal Appellees, and we ask the court to affirm. [00:20:48] Speaker 04: At its core, this case is about plaintiffs' effort to derive information potentially relevant to their interests from the services regulatory relationship with SeaWorld. [00:21:00] Speaker 04: But because they're not entitled to that information, they lack standing. [00:21:04] Speaker 04: And even if they had standing, they failed to state a claim because they have not identified a final agency action. [00:21:11] Speaker 04: For those reasons, we ask the court to affirm. [00:21:13] Speaker 04: I'd like to begin today with standing and specifically the government's argument that plaintiffs have asserted and failed to satisfy the relevant test for informational injury. [00:21:27] Speaker 04: All of plaintiff's harms here stem from the sense that they've been deprived of information that they want the government to produce, and therefore they've triggered the two-part test for informational standing. [00:21:37] Speaker 04: The first part of that test asks whether they have a statutory entitlement to that information. [00:21:44] Speaker 04: Plaintiffs here identify no statutory entitlement, and in fact, they assert that they're not obligated to identify an entitlement at all to satisfy the test. [00:21:53] Speaker 01: Suppose you're right about [00:21:56] Speaker 01: that the informational injury part of your case, they couldn't establish informational injury under Akins. [00:22:07] Speaker 01: Their theory is they don't have to because they satisfy a different organizational injury test. [00:22:16] Speaker 01: And as some of my questions suggested, I find that a little bit problematic. [00:22:23] Speaker 01: But what do you do with [00:22:25] Speaker 01: Bernhardt, Friends of Animals versus Bernhardt. [00:22:29] Speaker 01: It's a 2020 case from this court, and all you say in your brief is you just give us a butt seaside to it. [00:22:40] Speaker 01: That's probably not good enough for a panel bound by precedent. [00:22:44] Speaker 04: Understandably, the relevant discussion Bernhardt was a one line footnote and we think the case is distinguishable because at least there the plaintiffs asserted that the Endangered Species Act required the Fish and Wildlife Service to publish information in the federal register, rather than completed on a case by case basis. [00:23:07] Speaker 04: that wouldn't be subject to publication and that deprived them of information. [00:23:12] Speaker 04: So in that sense, even though the court said in the footnote that the ship had sailed, there was still at least some basis for the plaintiffs to say that they had an entitlement to that information. [00:23:22] Speaker 04: Now, Bernhard is a unique case. [00:23:26] Speaker 01: Sorry, I missed that. [00:23:27] Speaker 01: Help walk me through that. [00:23:31] Speaker 01: The Bernhardt decision said the ship has sailed but in the section after that when the ship has sailed on the proposition that the lack of the failure to satisfy [00:23:46] Speaker 01: the informational injury test under Akins defeats the claim of organizational standing under Havens. [00:23:54] Speaker 01: That's how I read it. [00:23:55] Speaker 01: So what am I missing? [00:23:56] Speaker 04: That is correct. [00:23:57] Speaker 04: The court was saying that the first part of the informational injury test, which requires the identification of some statutory entitlement, that element had sailed. [00:24:07] Speaker 04: But I think that Bernhard can be read comfortably with the other informational standing precedents and is distinguishable from this case [00:24:15] Speaker 04: because the plaintiffs were claiming that the agency's change in procedure deprived them of information that they asserted had to be published in the federal register. [00:24:26] Speaker 04: And here we don't have any sort of similar statutory or even regulatory hook that gives the plaintiffs any sort of right to information. [00:24:37] Speaker 04: Now, the statuted issue in Bernhardt was different from other classic informational injury statutes, but I think [00:24:45] Speaker 04: because it could be read broadly as a disclosure provision, it can be reconciled on its facts. [00:24:53] Speaker 01: It's not the more obvious reading of Bernhard. [00:25:00] Speaker 01: I guess your position has to be that a broad reading of Bernhard would bring it into conflict with Epic. [00:25:10] Speaker 01: And so we need to [00:25:13] Speaker 01: I don't know, spin sounds pejorative, but we need to narrow it because Epic seems strongly in your favor. [00:25:21] Speaker 04: That's correct. [00:25:22] Speaker 04: Also, I would point the court to TransUnion, which confirmed again that the first part of the informational injury test requires the identification of a statute. [00:25:31] Speaker 04: Also, Friends of Animals v. Jewel, which came after the PETA decision, [00:25:36] Speaker 04: held that the plaintiff there didn't have standing because it couldn't satisfy the first part of the informational injury test. [00:25:43] Speaker 04: And the requirement to identify at least some statute requiring disclosure or publication is very important, as the court recognized in the Ling case. [00:25:53] Speaker 04: informational injury in its broadest sense exists day in day out whenever federal agencies create information that a member of the public would like to have. [00:26:03] Speaker 04: And so it's necessary to have this hook to ensure that we're not opening up a Pandora's box or articulating a rule that lacks a limiting principle. [00:26:12] Speaker 04: And also the idea that an organization has [00:26:17] Speaker 04: developed activities centered around information does not mean that they should be able to evade the two-part informational injury test. [00:26:26] Speaker 04: Judge Millett's opinion in PWA USDA explained that there's no reason to allow an organization to proceed where an individual might fail. [00:26:37] Speaker 04: And I think plaintiffs identify or seek to identify what they assert or limiting principles in the organizational injury [00:26:46] Speaker 04: but the court explained in epic that if an injury, if a plaintiff or organization says that it's harmed because its activities have been impaired because they don't have information, if they don't have a legal entitlement to that information, then the injuries are sort of self-inflicted. [00:27:06] Speaker 04: And I think that's the problem here. [00:27:07] Speaker 04: Even if we look at the organizational standing test, which we don't think is the proper framework for this case, [00:27:15] Speaker 04: plaintiffs' arguments fail because they don't have any hook that entitles them to this information. [00:27:23] Speaker 04: separate from the legal entitlement or informational injury analysis, they also fail the organizational standing analysis because they haven't showed that they've undertaken additional expenditures or changed their resources to account for any sort of government decision here. [00:27:42] Speaker 04: On J-23, they talk about the fact that they will spend resources submitting FOIA requests and observing whales. [00:27:49] Speaker 04: But they identify no basis to, they don't allege that these are changes in resources. [00:27:56] Speaker 04: The record also makes clear, the complaint makes clear that they have spent resources submitting FOIA requests and observing whales all along. [00:28:05] Speaker 04: In the reply, they say that they will submit more FOIA requests and spend resources identifying other agencies to submit the requests to, but that's just not part of the complaint and they cannot amend it through [00:28:19] Speaker 04: through briefing on appeal. [00:28:21] Speaker 00: Ms. [00:28:22] Speaker 00: Engels, can I ask you the same question I asked Ms. [00:28:27] Speaker 00: Lewis? [00:28:29] Speaker 00: This is a suit about getting information that may not even exist. [00:28:35] Speaker 00: And we are all tied up in standing, and I'm more concerned about redressability. [00:28:42] Speaker 00: Do we know [00:28:43] Speaker 00: On this record, whether the necropsy was performed, whether the report was made prepared, and whether it still exists in view of this three year retention policy. [00:29:01] Speaker 04: The service's position is that in 1994, its authority to oversee the care of captive marine mammals was transferred or it was made clear that it was within the wheelhouse of the Animal and Plant Health Inspection Service, which has extensive regulations that apply to these sorts of activities. [00:29:24] Speaker 04: 9 CFR 3.100 G, [00:29:29] Speaker 04: says that captive facilities that hold these marine mammals need to prepare necropsy reports and keep them for three years so that they can be available for APHIS when they're requested. [00:29:43] Speaker 04: Now, I think I cannot confirm. [00:29:47] Speaker 04: I have not seen these reports. [00:29:48] Speaker 04: My client is not the agency responsible for these reports at this point, but based on the regulations that SeaWorld is complying, [00:29:57] Speaker 04: The report should have been produced in 2017 for a business inspection. [00:30:02] Speaker 00: So have the plaintiff sued the wrong defendant. [00:30:07] Speaker 04: don't feel comfortable saying that if they sued APHIS, they would get the reports. [00:30:11] Speaker 04: I think that if they wanted to get them, APHIS is the better party because they're the agency responsible for regulating the care and taking of captive marine mammals. [00:30:23] Speaker 04: They have in the past undertaken inspections of these reports. [00:30:27] Speaker 04: I don't know that they've done it here. [00:30:29] Speaker 04: I think, for relevant purposes, the problem is that the orcas of interest to plaintiffs died in 2017, and now more than three years have passed. [00:30:37] Speaker 04: So it's possible that the reports are no longer available just based on the way the APHIS regulations have worked. [00:30:46] Speaker 00: Well, but there's nothing that orders them to destroy them after three years, right? [00:30:52] Speaker 00: That's true. [00:30:52] Speaker 04: That's true. [00:30:54] Speaker 04: It's just that they have to be maintained for three years. [00:30:56] Speaker 04: And so I can't say confidently that they're still available or that that would be an avenue of redress. [00:31:02] Speaker 04: But in any event, that's a regulatory regime that's not managed by the service. [00:31:10] Speaker 04: It's managed by USDA and the Animal Plants and Health Inspection Service. [00:31:15] Speaker 00: All right. [00:31:15] Speaker 00: Are there any more questions of Ms. [00:31:16] Speaker 00: Engels? [00:31:18] Speaker 02: Oh, thank you. [00:31:18] Speaker 00: All right, Mr. Lewis, why don't you take two minutes? [00:31:23] Speaker ?: Thank you. [00:31:24] Speaker 05: I just have four quick points. [00:31:27] Speaker 05: As your honor noted, the regs require the preparation of this report, and NIMS has never denied that they exist. [00:31:38] Speaker 05: So at this stage, we think that the complaint does plausibly infer that they do exist. [00:31:44] Speaker 05: And we are suing NIMS over its decision with respect to a permit over which it does have jurisdiction. [00:31:51] Speaker 05: Issue the permit, that's the whole [00:31:53] Speaker 05: issue in the case. [00:31:54] Speaker 05: And so we do, NIMS is the proper agency for us to be suing. [00:32:00] Speaker 05: And as far as forensic animals versus Bernhardt, there's a huge difference between a claim that the agency could not proceed by making these case by case [00:32:13] Speaker 05: determinations without a regulation versus an affirmative disclosure requirement, which this court's precedents have made extremely clear that a very clear firm statutory entitlement is required to form the basis of informational standing. [00:32:30] Speaker 05: And so informational standing was very clearly not alleged in that case. [00:32:34] Speaker 05: It rested entirely on organizational standing. [00:32:37] Speaker 05: And to your question about Epic, again, Epic did not rely on a statutory entitlement to deny informational or organizational standing. [00:32:48] Speaker 05: And we'd also remind the court that PETA, in the seminal case on this issue, also did not have a statutory entitlement to the information that it sought, yet still had organizational standing. [00:32:59] Speaker 05: And Judge Millett's opinion, in fact, noted that the majority's opinion [00:33:05] Speaker 05: walked the path with circuit precedent in finding that organizational standing existed even without a statutory entitlement to the information. [00:33:15] Speaker 05: And if the court has no further questions, we respectfully request that the ruling below be overturned. [00:33:24] Speaker 05: Thank you. [00:33:24] Speaker 05: Thank you. [00:33:26] Speaker 00: Madam Clerk, will you give us a short recess, please?