Page:Cetacean Community v. Bush.pdf/8

 It is obvious that an animal cannot function as a plaintiff in the same manner as a juridically competent human being. But we see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents. See, e.g., Sausalito, 386 F.3d at 1202, 2004 WL 2348885 (city is a “person” that can bring suit under the APA); Walker v. City of Lakewood, 272 F.3d 1114, 1123 n. 1 (9th Cir.2001) (non-profit corporation had standing to sue under FHA and FEHA); The Gylfe v. The Trujillo, 209 F.2d 386 (2d Cir.1954) (discussing counterclaim by ship as “injured party” in collision litigation); Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 266, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (plaintiff Nancy Cruzan was in “persistent vegetative state”); see also Christopher D. Stone, Should Trees Have Standing?-Toward Legal Rights for Natural Objects, 45 S. Cal. L.Rev. 450, 452 & n.13 (1972) (“The world of the lawyer is peopled with inanimate rights holders: trusts, corporations, joint ventures, municipalities, Subchapter R partnerships, and nation-states, to mention just a few.”).

If Article III does not prevent Congress from granting standing to an animal by statutorily authorizing a suit in its name, the question becomes whether Congress has passed a statute actually doing so. We therefore turn to whether Congress has granted standing to the Cetaceans under the ESA, the MMPA, NEPA, read either on their own, or through the gloss of Section 10(a) of the APA.

Section 10(a) of the APA provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."

5 U.S.C. § 702. When a plaintiff seeks to challenge federal administrative action, Section 10(a) provides a mechanism to enforce the underlying substantive statute. Section 10(a) grants standing to any person “adversely affected or aggrieved by a relevant statute,” making the relevant inquiry whether the plaintiff is hurt within the meaning of that underlying statute.

If a statute provides a plaintiff a right to sue, it is often said that the plaintiff has been granted a “private right of action.” See, e.g., Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc) (explaining that 42 U.S.C. § 1983 creates a “private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights.”). The phrase “private right of action” is sometimes used in the context of administrative law to refer to a right to challenge administrative action that is explicitly and directly provided by a particular statute, in contrast to a right to challenge administrative action granted only when the statute is read with the gloss of Section 10(a) of the APA. See, e.g., Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). This manner of speaking is somwhat misleading when a plaintiff seeks to challenge an administrative action, for the end result is the same whether the underlying statute grants standing directly or whether the APA provides the gloss that grants standing. In both cases, the plaintiff can bring suit to challenge the administrative action in question. In the first case, the substantive statute grants statutory standing directly to the plaintiff. In