protectors. The scheme of the ESA is that a “person,” as defined in § 1532(13), may sue in federal district court to enforce the duties the statute prescribes. Those duties protect animals who are “endangered” or “threatened” under § 1532(6) and (20). The statute is set up to authorize “persons” to sue to protect animals whenever those animals are “endangered” or “threatened.” Animals are not authorized to sue in their own names to protect themselves. There is no hint in the definition of “person” in § 1532(13) that the “person” authorized to bring suit to protect an endangered or threatened species can be an animal that is itself endangered or threatened.
We get the same answer if we read the ESA through Section 10(a) of the APA. The Supreme Court has specifically instructed us that standing under the ESA is broader than under the APA’s “zone of interests” test. Bennett v. Spear, 520 U.S. 154, 163–64, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Moreover, like the ESA, Section 10(a) of the APA grants standing to a “person.” “Person” is explicitly defined to include “an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. §§ 551(2), 701(b)(2). Notably absent from that definition is “animal.” Data Processing, 397 U.S. at 156, 90 S.Ct. 827, and Clarke, 479 U.S. at 400 n. 16, 107 S.Ct. 750, instruct us that Section 10(a) means that we should read the underlying statute to grant standing generously, such that “persons” who are “adversely affected or aggrieved” are all persons “arguably within the zone of interests” protected by the underlying statute. See Bennett, 520 U.S. at 163, 117 S.Ct. 1154. But, as with the ESA, these cases do not instruct us to expand the basic definition of “person” beyond the definition provided in the APA.
3. The MMPA
Unlike the ESA, the MMPA contains no explicit provision granting standing to enforce its duties. The MMPA imposes a moratorium on “taking” a marine mammal without a permit, and prohibits “incidental, but not intentional” takes without a letter of authorization. 16 U.S.C. § 1371(a)(51)(1). The statute defines “[to] take” as “[to] harass, hunt, capture, or kill” any marine mammal, or to attempt to do any of these things. Id. § 1362(13). The MMPA explicitly grants standing to seek judicial review to any permit applicant, and to a “party” opposed to such a permit. Id. § 1374(d)(6). But the statute says nothing about the standing of a would-be party, such as the Cetaceans, who seek to compel someone to apply for a letter of authorization, or for a permit.
Relying on Section 10(a) of the APA as well as Data Processing and Clarke, we have held that affected “persons” with conservationist, aesthetic, recreational, or economic interests in the protection of marine mammals have standing to seek to compel someone to apply for a permit under the MMPA. Sausalito, 386 F.3d at 1203, 2004 WL 2348385 (citing 5 U.S.C. § 702; Clarke, 479 U.S. at 399, 107 S.Ct. 750). But, as discussed above, Section 10(a) of the APA does not define “person” to include animals. No court has ever held that an animal-even a marine mammal whose protection is at stake-has standing to sue in its own name to require that a party seek a permit or letter of authorization under the MMPA. See Citizens to End Animal Suffering & Exploitation, Inc., 836 F.Supp. at 49 (rejecting such a suit). Absent a clear direction from Congress in either the MMPA or the APA, we hold that animals do not have standing to enforce the permit requirement of the MMPA.
