La Jolla Friends of the Seals v. National Oceanic & Atmospheric Administration National Marine Fisheries Service

ORDER

The matter before the Court is the motion to dismiss the Complaint for lack of subject matter jurisdiction filed by the Federal Defendants. (Doc. # 12).

ALLE GATIONS OF THE COMPLAINT

Plaintiffs, an organization and an individual with conservationist, aesthetic and recreational interests in marine mammal protection, brought this action against Defendants National Atmospheric Administration National Marine Fisheries Service (NMFS); Carlos M. Gutierrez, Secretary of Commerce; James W. Balsiger, Acting Director of the NMFS; James Lecky, Director of Office of Protected Resources at the NMFS (collectively “the Federal Defendants”); and Defendant City of San Diego. In the second cause of action against the Federal Defendants, Plaintiffs seek “judicial review of agency action under 5 U.S.C. § 702 to prevent the NOAA from ceding its authority to the City of San Diego to interpret and apply the Marine Mammal Protection Act.” (Doc. # 1 at 7).

Plaintiffs allege that the NMFS has taken the position that Section 109(h) of the Marine Mammal Protection Act (MMPA) which provides that the take prohibitions of the Act do not apply to local officials in the course of their official duties…