Dismissal of appeal against regulation of wolf packs and refusal of access to official documents

Facts

The appellant, a private individual, filed an appeal with the Federal Administrative Court on 25 January 2024 against the consent decisions of the Federal Office for the Environment (FOEN) dated 27 November 2023 and 18 December 2023 regarding the proactive regulation of wolf packs in the cantons of St. Gallen, Graubünden, Valais, Vaud and Ticino. In addition, she requested access to official documents, the revocation of already issued shooting permits and a declaration of the disproportionateness of the measures. The FOEN had previously approved the proactive regulation of the Calfeisental wolf pack (at least 8 wolves) with a decision dated 27 November 2023 and, with supplementary decisions dated 18 December 2023, removed the suspensive effect of any appeals. On 22 December 2023 and 23 January 2024, the appellant requested access to the consent decisions from the FOEN and the conduct of a consultation procedure for the revision of the Hunting Ordinance. The FOEN refused access to the contested decisions on the grounds that they were part of ongoing court proceedings.

The Federal Administrative Court dismissed the appeal with a judgment dated 5 August 2024, to the extent that it ruled on the merits. It denied the appellant’s standing to appeal due to lack of special interest and current legal protection interest, as well as the capacity of the wolves to be parties to the proceedings. It also dismissed the request for access to official documents. The appellant then filed an appeal in public law matters with the Federal Supreme Court on 16 September 2024, seeking the annulment of the contested decisions and access to the official documents. The FOEN and the Federal Department of the Environment, Transport, Energy and Communications (DETEC) waived the right to submit a statement.

Considerations

Admissibility requirements and admissibility of the appeal: The Federal Supreme Court examined the admissibility requirements ex officio and found that the appeal against the Federal Administrative Court’s judgment of 5 August 2024 is admissible, as it constitutes a final decision in a matter of public law. The appeal against the Federal Administrative Court’s interim decisions of 29 January 2024 and 18 March 2024 was, however, deemed inadmissible, as these interim decisions no longer had any effect at the time of the final decision. The appellant is entitled to file an appeal as the addressee of the contested judgment, whereas the wolves are not entitled to appeal due to lack of capacity to be a party.

Appellant’s standing to appeal: The appellant claimed to be particularly affected by the consent decisions, as she is professionally and privately committed to biodiversity and environmental protection. The Federal Supreme Court rejected this, stating that the appellant could not demonstrate a special interest within the meaning of Art. 48 para. 1 lit. b APA and Art. 89 para. 1 lit. b FSCA. Her submissions were limited to general public interests, which amounted to an inadmissible actio popularis. Moreover, she was not entitled to file an appeal as an organisation under Art. 12 NCHA. The lower court was therefore correct to deny the appellant’s standing to appeal.

Capacity of the wolves to be parties and the appellant’s power of representation: The Federal Supreme Court confirmed that wolves lack legal capacity and therefore cannot be parties to proceedings. Representation by the appellant was also ruled out, as there was no legal basis for such representation. The appellant could not rely on general interest representation, as only…