| ||||||
|
EARTH
ISLAND INSTITUTE, et al., Plaintiffs, v. ROBERT A. MOSBACHER, SR., et al.,
Defendants. AMERICAN TUNABOAT ASSOCIATION, et al., Intervenor-Defendants
No.
C-88-1380-TEH
UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
746 F. Supp. 964; 1990 U.S. Dist. LEXIS 11409; 21 ELR 20259
August
28, 1990, Decided
August
28, 1990, Filed COUNSEL: [**1]
Plaintiffs Wondie Russell, Elisabeth A. Robinson, Geoffrey R. Kors,
Heller, Ehrman, White & McAuliffe, San Francisco, California.
Defendants
Roger J. Marzulla, Assistant AG, James C. Kilbourne, Charles W. Brooks,
Attorneys, Department of Justice, Land & Natural Resources Division,
Benjamin Franklin Station, Washington, District of Columbia.
C.
Hugh Friedman, Lorenz, Alhadeff, Lundin & Oggel, San Diego, California,
David G. Burney, Washington, District of Columbia, John A. Hodges, Wiley, Rein
& Fielding, Washington, District of Columbia, August J. Felando, San Diego,
California, John A. Hodges, Wiley, Rein & Fielding, Washington, District of
Columbia, for Intervenor American Tunaboat Assoc.
JUDGES: Thelton E. Henderson,
United States District Judge.
OPINION BY: HENDERSON
OPINION: [*966]
ORDER FOR PRELIMINARY INJUNCTION
THELTON
E. HENDERSON, UNITED STATES DISTRICT JUDGE
MEMORANDUM
OPINION
This
matter comes before the Court on Plaintiffs' motion for preliminary injunction.
Plaintiffs seek to enforce various provisions of the Marine Mammal Protection
Act, 16 U.S.C. § § 1361 et seq.,
particularly those relating to the protection of dolphins. Specifically,
plaintiffs ask the Court to enforce provisions of the statute which they claim
require a ban on the import of tuna from foreign nations until such time as
certain findings [**2] regarding incidental dolphin takings are
made.
Plaintiffs'
motion came on for hearing on Monday, Aug. 20, 1990. After considering the
parties' written and oral arguments, it appears to the satisfaction of the
Court therefrom that plaintiff's motion for a preliminary injunction should be
GRANTED in part and DENIED in part and that, unless a preliminary injunction is
granted, plaintiffs may suffer irreparable injury before the matter can be
brought to trial.
PARTIES
1.
Plaintiff Earth Island Institute is a California non-profit corporation with
its principal place of business in San Francisco, California. It is a national
organization whose members share a commitment to the protection of marine
mammals.
2.
Plaintiff The Marine Mammal Fund is a California non-profit corporation with
its principal place of business in San Francisco, California. Its charter is to
sustain and enhance the ocean ecology with an emphasis on the survival of
marine mammal species.
3.
Plaintiff David R. Brower is a resident of Berkeley, California.
4.
Defendant Secretary of the United States Department of Commerce is charged by
law with the responsibility of enforcing all aspects of the Marine Mammal
Protection [**3] Act, 16 U.S.C. § § 1361 et seq. (MMPA); in this regard, he
is also responsible for the actions of the National Oceanic and Atmospheric
Administration (NOAA) and the National Marine Fisheries Service (NMFS).
5.
Defendant Administrator of the NOAA is allegedly authorized to carry out
functions described in the MMPA.
6.
Defendant Assistant Administrator of the NMFS is allegedly authorized to carry
out functions described in the MMPA.
7.
Defendant Secretary of the United States Treasury Department is charged with
certain duties in relation to enforcement of the MMPA pursuant to Section 1371
(a) (2) of the MMPA, especially as regards banning the importation into the
United States of certain commercial fish and fish products.
INTRODUCTION
Yellowfin
tuna, which are one of a number of tuna species caught for food, are commonly
caught with purse seine nets. Purse seines are large nets which are manoeuvered
around the fish by means of floats and weights and which are then closed like a
purse upon the fish trapped inside.
In the
Eastern Tropical Pacific Ocean (ETP), a five to seven million square mile area
of ocean stretching from Southern California to Chile and extending west for
nearly [**4] three thousand miles, schools of yellowfin tuna often associate
with herds of dolphin and the two groups move together as they forage for food.
The dolphins swim in the upper levels of the ocean where they are visible as
they break the surface to breathe and leap into the air. The tuna forage below
the dolphin in the deeper water. The result of this relationship is that the
tuna fishing fleets from several nations, including the United States and
numerous South and Central American nations such as Mexico, Ecuador, Panama and
Venezuela, take advantage of this natural phenomenon by pursuing the visible
dolphin herds in order to locate schools of yellowfin tuna possibly below. [*967]
Due to the association between dolphins and yellowfin tuna, fishing
vessels often set their purse seine nets on dolphins in order to catch the
tuna. In this process, referred to as "setting on dolphins," the
air-breathing dolphins are intentionally chased and deliberately encircled in
the nets in order to catch the yellowfin tuna which may be below. To expedite
the process of closing the nets into a circle, the tuna fishermen and women
sometimes use explosives and chase boats to drive the dolphins into the
center [**5] of their nets. Setting on dolphins often results in the death and
maiming of some or all of the dolphins entangled in the nets. Dolphins not
immediately killed may later die from serious injuries. The dolphin population in the eastern
tropical Pacific has fallen significantly in the last twenty years, and at
least one sub-species has fallen below the level needed to sustain the
population.
Marine Mammal Protection Act
In
order to curb the worst excesses of the practice of "setting on
dolphins," and to save the lives of dolphins and other marine mammals,
harmed in this and other manners, Congress in 1972 enacted the Marine Mammal
Protection Act (MMPA). Amendments to the MMPA were enacted in 1981, 1984 and
1988. The Act proclaimed an "immediate goal that the incidental kill or
incidental serious injury of marine mammals permitted in the course of
commercial fishing operations be reduced to insignificant levels approaching a
zero mortality and serious injury rate." 16 U.S.C. § 1371(a)(2). To achieve this goal,
Congress, in Sections 1373 and 1374 of the Act granted the Secretary of
Commerce broad powers to promulgate and enforce regulations designed to insure
realization of the [**6] Act's objectives.
The MMPA and the United States tuna
fishing fleet
In
order to set on dolphins, the American Tunaboat Association receives a general
permit. This general permit is the mechanism by which the United States fleet
can be given permission to intentionally pursue, capture and kill dolphins in
the course of its commercial tuna fishing operations. Absent the permit, this conduct is absolutely proscribed under
the MMPA. In 1980, an absolute ceiling on dolphin mortality of 20,500 was
included in the "general permit" issued to the American Tunaboat
Association. This limit was later incorporated into the NMFS regulations
implementing the Act and codified in the Act itself. In 1981, Section 1371 of
the Act was amended to provide that:
[the] goal, [of zero mortality] shall be
satisfied in the case of the incidental taking of marine mammals in the course
of purse seine fishing for yellowfin tuna by a continuation of the application
of the best marine mammal safety techniques and equipment that are economically
and technologically practicable.
Subsequent
to the enactment of the MMPA, various dolphin-saving measures have been
researched and implemented by the United States [**7] tuna fishing fleet
and the American Tunaboat Association. On January 17, 1989, this Court, relying
upon a provision of the MMPA, granted plaintiffs' motion for a preliminary
injunction requiring that all United States certificated tuna vessels fishing
within the Eastern Tropical Pacific must have a certified observer on board for
the observation of fishing operations, unless for reasons beyond the control of
the Secretary of Commerce, an observer is unavailable.
The MMPA and the foreign tuna fishing
fleet
Today
this Court addresses provisions of the MMPA which apply to the foreign tuna
fishing fleet. The killing of dolphins by foreign tuna fleets has been the
object of intense Congressional concern for almost two decades. The Marine
Mammal Protection Act of 1972, 16 U.S.C. §
1361 et seq., as originally enacted directed the Secretary of the
Treasury to "ban the importation" of commercial fish or fish products
caught with "technology resulting in the incidental kill or incidental
serious injury of ocean mammals in excess of United States standards." 16
U.S.C. § 1371(a)(2).
In
1984, concerned that the NMFS was not holding foreign vessels to United States
dolphin protection standards,
[**8] Congress [*968]
amended the MMPA to lessen the agency's discretion, and established
stringent and specific restrictions on foreign nations seeking to import tuna
into the United States. Under the 1984 amendment to § 101 of the MMPA, tuna harvested with purse seines in the eastern
tropical Pacific Ocean (ETP) can be imported only upon a demonstration by the
government of the foreign nation that it: (1) has in place a
"comparable" regulatory program to that of the United States fleet
for protecting dolphins from commercial fishing operations; and (2) has an
average incidental marine mammal taking rate "comparable" to that of
the United States fleet. 16 U.S.C. §
1371 (a)(2)(B).
A full
four years after the 1984 MMPA amendments were enacted, the NMFS had only
issued "interim final" regulations regarding the importation of tuna
taken in association with dolphin kills. Moreover, these rules would have
allowed foreign nations until 1991 to comply with the statute. Congress spoke to this issue by amending the
MMPA to require foreign fleet compliance with certain of the comparability
requirements by the end of 1989. On November 23, 1988, the President of the
United States signed into law the Congressional [**9] amendments to the
MMPA.
Congress
was clearly concerned that its efforts to improve the fishing practices of the
United States fleet would be undone by the fishing excesses of the foreign
fleet. Senator Breaux stated at the Hearings on Reauthorization of the MMPA:
The program is working in the United
States. The problem is not with our tuna industry. The problem is with the
foreign fishermen, who take four times more porpoises than our industry does
.... And even equally as bad, our government has not done anything about it. We
gave them the authority to say that exports to the United States would be restricted
if the foreign fleets do not do something about the problem. And what has our
government done? They have not even issued the regulations to institute the
program Congress passed. That was four years ago. And the real question is
where are the regulations? What are they waiting for? Opening statement of Senator Breaux, S.
Hrng. 100-711, Hearings on Reauthorization of the MMPA at 4 (April 13, 1988).
The
record is replete with references to the "foreign fleet problem." See,
e.g., 134 C.R.H. 8243 (September 26, 1988) (Rep. Young: "It is
important to remember that it is
[**10] the greatly increased
mortality caused by foreign tuna boats which is responsible for most of the
porpoise deaths.").
Congress
clearly believed that banning the importation into the United States of tuna
caught by foreign nations with incidental marine mammal taking rates in excess
of United States rates would help to protect the dolphin population. Congress
believed that the ban would encourage foreign fleets to adopt dolphin-safe practices.
It is also clear that such regulations would help to protect United States
fishermen and women from unfair competition from the vessels of foreign nations
which engage in fishing practices which may be less expensive, but which result
in much higher dolphin kill rates.
The
1988 amendments to the MMPA which this Court addresses today were designed to
address the "foreign fleet problem." The amendments were designed to
limit agency discretion to determine "comparability" as to the
incidental taking rate of foreign nations to that of the United States fleet by
establishing precise and clear standards for these determinations. Despite the fact that the 1989 fishing
season n1 has come and gone, and that we are now nearly nine months into the
1990 [**11] fishing season, no comparability findings have been made based on
the 1988 amendments to the MMPA which are at issue today. It is on the basis of
these facts that the Court grants this preliminary injunction.
n1
Since yellowfin tuna fishing occurs year round, this Court has held that the
fishing season is coextensive with the calendar year.
[*969] ANALYSIS
It is
well established in this Circuit that a preliminary injunction is appropriate
where plaintiffs demonstrate either: (1) a combination of probable success on
the merits and the possibility of irreparable injury, or (2) that serious
questions are raised and the balance of hardships tips sharply in their
favor. Miss World (UK) Ltd. v. Mrs.
America Pageants, Inc., 856 F.2d 1445, 1448 (9th Cir. 1988).
Plaintiffs
seek a preliminary injunction based on the defendants' alleged noncompliance
with two provisions of the MMPA. We hold that the plaintiffs have demonstrated
a likelihood of success on the merits with regard to one of the two provisions,
as well as a possibility [**12] of irreparable injury, and that a
preliminary injunction should therefore issue.
LIKELIHOOD OF SUCCESS ON THE MERITS
The
Court will address separately the two MMPA provisions upon which plaintiff
primarily relies.
This
matter focuses on certain provisions of 16 U.S.C. § 1371, which this court has already
addressed when we denied plaintiffs' motion to require observers on all tuna
boats of a foreign nation in order for that nation to import tuna to the United
States. Today we GRANT plaintiffs' motion that no foreign nation may import
tuna into the United States unless the Secretary of Commerce first finds that
the average rate of incidental taking by vessels of the harvesting nation is no
more than 2.0 times that of United States vessels during the same period.
We
DENY plaintiffs' motion to ban the import of tuna from foreign countries unless
and until the Secretary of Commerce finds that the total number of eastern
spinner dolphins incidentally taken by vessels of the harvesting nation during
the 1989 fishing season did not exceed 15 percent of the total number of all
marine mammals incidentally taken by such vessels in such year and the total
number of coastal spotted dolphin
[**13] incidentally taken by
such vessels in the 1989 fishing season did not exceed 2 percent of the total
number of all marine mammals incidentally taken by such vessels in that year.
incidental taking rates
The
statute orders the Secretary of the Treasury to ban the importation of
yellowfin tuna caught with purse seines by vessels of foreign nations unless
and until the Secretary of Commerce makes a positive finding that the average
incidental taking rate of marine mammals by a given nation wishing to import
yellowfin tuna is "comparable" to the average rate of United States
vessels. The 1988 amendments establish guidelines for what may be deemed
"comparable." It is clear that as of the end of 1989 the statute
forbids a finding of "comparable," and therefore forbids imports, for
any nation whose vessels have an average incidental marine mammal taking rate
which exceeds 2.0 times that of United States vessels. Similarly, as of the end
of 1990, the Secretary of Commerce may not make a finding of comparability
unless the average taking rate of the foreign nation does not exceed 1.25 that
of United States vessels. The relevant standard of comparability remains 1.25
from the end of 1990 [**14] forward. Nations which demonstrate to the
Secretary that their taking rates fall within the relevant standards may import
purse seine-caught yellowfin tuna into the United States.
The
statute reads in relevant part:
[1] The Secretary of the Treasury shall
ban the importation of commercial fish or products from fish which have been
caught with commercial fishing technology which results in the incidental kill
or incidental serious injury of ocean mammals in excess of United States
standards. For purposes of applying the preceding sentence, the Secretary -- **** [2] (B) in the case of yellowfin tuna
harvested with purse seines in the eastern tropical Pacific Ocean, and products
therefrom, to be exported to the United States, shall require that the
government of the exporting nation provide documentary evidence that -- **** [*970] [3] (ii) the
average rate of that incidental taking by the vessels of the harvesting nation
is comparable to the average rate of incidental taking of marine mammals by
United States vessels in the course of such harvesting, [4] except that the Secretary shall not
find that the regulatory program, or the average rate of incidental taking by
vessels, [**15] of a harvesting nation is comparable to that
of the United States for purposes of clause ... (ii) of this paragraph unless
-- **** [5] (II) the average rate of the
incidental taking by vessels of the harvesting nation is no more than 2.0 times
that of United States vessels during the same period by the end of the 1989
fishing season and no more than 1.25 times that of United States vessels during
the same period by the end of the 1990 fishing season and thereafter;
16
U.S.C. § 1371 (a)(2), (numbers in
brackets added for reference).
Clause
[1] establishes as the status quo a ban on importation of "commercial
fish or products from fish which have been caught with commercial fishing
technology which results in the incidental kill or incidental serious injury of
ocean mammals in excess of United States standards." The final sentence of
clause [1] explains that the subsequent clauses describe how to "apply[]
the preceding sentence [the import ban]."
Clauses
[2] through [5] explain how the statutory ban can be overcome by foreign
nations that wish to import purse seine-caught yellowfin tuna into the United
States. Clause [2], provides that in order to overcome the import ban,
foreign [**16] governments must provide certain documentary
evidence to the Secretary of Commerce.
Clause
[3] states that the documentary evidence which clause [2] requires must show
that the average rate of that incidental taking by the vessels of the
harvesting nation is comparable to the average rate of incidental taking of
marine mammals by United States vessels in the course of such harvesting. If
the Secretary of Commerce is able to determine from the information submitted
by a given foreign government that the average marine mammal taking rates of
the vessels of the foreign country are "comparable" to those of
United States vessels, then the import ban may be overcome. The statute clearly
places the burden of production on the foreign nation seeking to import tuna,
which provides an excellent incentive for the speedy production of evidence.
Clauses
[4] and [5] establish guidelines, which become operative "by the end of
1989," as to what the Secretary may deem to be "comparable." The
"comparability" guidelines state that as of the "end of the 1989
fishing season" the Secretary of Commerce may not make a finding of
"comparable" for a foreign nation unless the documentary evidence
provided shows [**17] that the incidental taking rate for vessels
of the foreign nation "is no more than 2.0 times that of United States
vessels during the same period ...." Without a finding of
"comparable" for vessels of a given foreign nation, imports of yellowfin
tuna caught with purse seines in the ETP by the vessels of that nation are
forbidden. Clause [5] establishes similarly that "by the end of the 1990
fishing season," the comparability standards become even more stringent.
As of the end of 1990 the Secretary of Commerce may not make a finding of
"comparable" unless the foreign government demonstrates that its
average marine mammal incidental taking rate is no more than 1.25 times that of
the United States fleet.
Under
the terms of the statute, a given foreign government could have provided
evidence which would have allowed the Secretary to find that its average marine
mammal incidental taking rate was no more than 2.0 times that of the United
States before the end of 1989, and could have thereby avoided the import
ban altogether. Furthermore, until the end of 1990, the 2.0 times showing is
sufficient to allow the Secretary of Commerce to deem the taking rate
"comparable," for purposes of
[**18] overcoming the import
ban. [*971]
Similarly, a given foreign government may provide evidence which allows
the Secretary to find that its average marine mammal incidental taking rate is
no more than 1.25 times that of the United States before the end of 1990
and may thereby avoid the ban at the end of 1990, after which time the
Secretary may not deem a taking rate to be comparable unless it meets the 1.25
times standard. Any time after the end of 1990 the import ban may be overcome
only by a finding that the 1.25 times standard has been met.
The
defendant argues that "by the end of the 1989 fishing season" means
that it must make its findings based upon information for the entire 1989
fishing season (which is coextensive with the 1989 calendar year). Defendants claim that fishing vessels which
leave port in December may not return for several months, and that only then
can the data from such ships be collected.
Defendant
misunderstands the clear meaning of the statute. The statute nowhere states
that the comparison between foreign dolphin taking rates and United States
dolphin taking rates must be made based upon data for the entire 1989 calendar
year. The statute merely states that the
[**19] comparison between the
taking rates of the United States and foreign fleets must be made based upon
data for "the same period." As of the end of 1989, the Secretary may
not make the finding of "comparable" required to overcome the import
ban unless the foreign government provides evidence that its average taking
rate does not exceed 2.0 times that of United States vessels. Indeed, at the
end of 1989, the Secretary could have based this finding upon data from the
first six or eight months of 1989, or, at the present time, the finding could
be made upon data for the entire 1989 year.
The same holds for the comparability standards which pertain as of the
end of 1990. The comparison can be made based upon data from the first six
months of 1990, or even for the year of 1989, so long as that data demonstrates
that the average taking rates of the vessels of the foreign country do not exceed
1.25 times that of United States vessels for the same period.
If the
Secretary waited for data on every yellowfin tunafish caught in 1989, then
clearly the comparability finding could not have been made by the end of 1989.
The result under the statute would be an intermittent ban with the beginning
of [**20] each year which could only be overcome upon a showing that the
statutory standards were met for the entire previous fishing season. This is
clearly an unworkable policy. Instead Congress wisely established a system
whereby a foreign government could avoid the import ban completely, simply by
demonstrating, in a timely fashion, its compliance with the terms of the
statute. This provides a great incentive for foreign governments to comply with
the terms of the statute promptly and to reduce their dolphin kill rates, which
was the underlying purpose of the statute.
From
the legislative history, it is clear that the Congress was frustrated with what
it considered to be agency foot-dragging in implementing the import ban to
address the "foreign fleet problem." It is therefore understandable
that Congress implemented strict guidelines establishing standards which apply
as of specific dates. The system created provides incentive for both the foreign
government and the agency to respectively provide the relevant information and
make the requisite findings in order to continue yellowfin tuna imports.
The
defendants argue that there is a long-standing agency policy that data
regarding marine [**21] mammal taking rates for any given year is
due from foreign governments wishing to import yellowfin tuna to the United
States by July 31 of the following year. This date is now past and the relevant
country reports are in. Defendants allege that now that the information is in
it will take time to analyze the data and decide whether the 2.0 times limits
established by the MMPA amendment was exceeded in 1989. Defendants argue that
since the July 31 deadline was established policy in the federal record and was
left undisturbed by Congress when it passed
[*972] the 1988 MMPA amendments,
that Congress believed the policy to be adequate.
While
it is true that the judiciary will generally respect agency policy, it will not
do so, as in this instance, where that policy is in clear contravention of a
Congressional statute. As the D.C. Circuit Court stated, review of
Congressional intent is "necessary" to insure that "the agency
properly construes its statutory obligations, and that the policies it adopts
and implements are consistent with those duties and not a negation of
them." Adams v. Richardson, 156 U.S. App. D.C. 267, 480 F.2d 1159, 1163-64
(D.C. Cir. 1973) (en banc); See also, Burlington Truck Lines v.
United [**22] States, 371 U.S. 156, 165-169, 9 L. Ed. 2d
207, 83 S. Ct. 239, 244-46 (1962). The judiciary, in reviewing agency
action, "can always ascertain whether the will of Congress has been
obeyed." Immigration and Naturalization Service v. Chadha, 462 U.S.
919, 953 n. 16, 77 L. Ed. 2d 317, 103 S. Ct. 2764, 2785 (1983), quoting, Yakus
v. United States, 321 U.S. 414, 425, 88 L. Ed. 834, 64 S. Ct. 660, 667 (1941).
The defendant fails to realize that Congress did, in fact, reject the agency
policy.
With
the 1988 amendments, Congress explicitly stated that as of the end of 1989 the
agency may not make the finding of "comparable" which is necessary to
overcome the import ban unless the importing government has made a showing that
its average incidental taking rate does not exceed 2.0 times that of United
States vessels. Congress explicitly stated that these comparability findings
must have been made by the end of 1989 in order for tuna imports to have
continued. There is no way to implement the will of the legislature when the
requisite data regarding 1989 was not even collected from the foreign
governments until July 31 of 1990.
In
fact, Congress enacted those amendment because it believed that existing agency
policy was inadequate. Congress, in enacting the 1988 amendments to the MMPA,
specifically [**23] rejected proposed agency guidelines which
would have delayed the ban until 1991, and severely criticized the agency for
delays in implementing the 1984 MMPA amendments.
As the
D.C. Circuit Court stated in another case involving NMFS policy which violated
the dictates of Congress expressed in the MMPA, "past administrative
practice that is inconsistent with the purpose of an act of Congress cannot
provide an exception and the moratorium must still be fully upheld in this
situation." Kokechik Fishermen's Ass'n. v. Secretary of Commerce, 268
U.S. App. D.C. 116, 839 F.2d 795, 802-3 (D.C. Cir. 1988).
The
defendants also argue that the calculations required to determine the marine
mammal taking rates are very complex and time consuming, and will therefore
take additional time. The defendant provides as examples calculations it makes
comparing dolphin takings at different times of day and in different regions of
the ocean.
Again,
defendant ignores the plain language of the statute. Nowhere in the statute is
the agency directed to make the above-mentioned calculations. The statute
directs the Secretary of Commerce to make the simple calculation comparing the
average marine mammal taking rates of foreign fishing [**24] vessels to those
of United States vessels. Nowhere does the statute direct the Secretary to
compare taking rates by time of day or region of the ocean. The statute
requires a fairly simple calculation. In this age of computers, it is difficult
to understand why this calculation would be so difficult or time-consuming.
Even if additional time were required, it was incumbent upon the governments
desirous of continuing imports to provide the Secretary with the requisite
information so that as of the end of 1989, the Secretary could make the
comparability determinations based upon the new standards. The new standards
apply now, and no finding of comparability can be made, and hence no
imports allowed, unless the Secretary finds that the importing governments have
met the standards.
The
Secretary appears to ignore the fact that the statute places the burden of
production of documentary evidence on the foreign governments who wish to
import tuna into the United States. Such governments must produce this evidence
in sufficient time to allow the Secretary to make [*973] the taking rate
comparability finding. Continued imports is the incentive for production of the
evidence. Under the agency's [**25] interpretation, it is the dolphins and
domestic fishermen, not the foreign governments who bear the burden of the
foreign governments' late production of evidence, since the Secretary allows
the importation of dolphin-unsafe tuna to continue in the interim period. This
clearly violates the statutory intent, which was to protect those very
interests which are now bearing the burden of agency and foreign government
foot-dragging.
In a
similar action involving statutory import prohibitions under the MMPA, the D.C.
Circuit declared invalid and inconsistent with the MMPA a decision by the NMFS
to allow the importation of baby fur sealskins in the face of a statutory
moratorium. Animal Welfare Institute
v. Kreps, 183 U.S. App. D.C. 109, 561
F.2d 1002 (D.C. Cir. 1977). In accord is Kokechik Fishermen's Ass'n v.
Secretary of Commerce, 268 U.S. App. D.C. 116, 839 F.2d 795 (D.C. Cir. 1988),
in which the court struck down NMFS's decision to issue a permit to foreign
fishermen which would have allowed the taking of certain marine mammals in
violation of the MMPA. The Court held that the agency was without authority
"by regulation or any other action, to issue a permit that allows conduct
prohibited by the Act." 839 F.2d at 802. The [**26]
Court rejected the agency's arguments for administrative latitude:
Practical considerations or
unavailability of information is no excuse.
If the Secretary believes the Act needs an amendment, then it is
Congress he must address. Id.
The Agency
does not have the authority to operate under policies which violate the clear
dictates of the statute. As the D.C. Circuit stated in Public Citizen v.
FTC, 276 U.S. App. D.C. 222, 869 F.2d 1541, 1557 (D.C. Cir. 1989):
In this case, Congress' rigidity is not a
sign of its folly, but rather signals its intent to act swiftly and decisively
.... Congress has the power to take such rigid measures. And absent an express
grant of authority to change the terms of the statute, we will not imply agency
authority to alter the statutory mandate.
For
the above reasons, this Court holds that the plaintiff has demonstrated a
likelihood of success on the merits required to enjoin the Secretary of the
Treasury from allowing the importation of yellowfin tuna caught in the eastern
tropical Pacific by means of purse seines by foreign nations, unless and until
the Secretary of Commerce makes a finding that the average incidental taking
rate of the yellowfin tuna fishing vessels
[**27] of such nation does not
exceed 2.0 times that of United States vessels for the same period.
Percentage of marine mammals taken which
are of certain species
Plaintiffs
move this Court to issue an injunction banning the import of tuna from foreign
countries unless and until the Secretary of Commerce finds that the total
number of eastern spinner dolphins incidentally taken by vessels of the
harvesting nation during the 1989 fishing season did not exceed 15 percent of
the total number of all marine mammals incidentally taken by such vessels in
such year and the total number of coastal spotted dolphin incidentally taken by
such vessels in the 1989 fishing season did not exceed 2 percent of the total
number of all marine mammals incidentally taken by such vessels in that year.
We deny this portion of the plaintiffs' motion because plaintiffs have
demonstrated neither a probability of success on the merits nor that serious
questions are raised as to the merits of this issue.
The
provision upon which plaintiffs rely does not include time provisions similar
to those of the incidental taking rate provision addressed above. The statutory language is the same as above,
except for clause [**28] [5], and reads as follows:
[1] The Secretary of the Treasury shall
ban the importation of commercial fish or products from fish which have been
caught with commercial fishing technology which results in the incidental kill
or incidental serious injury of ocean mammals in excess of United States
standards. [*974] For purposes of applying the preceding
sentence, the Secretary -- **** [2] (B) in the case of yellowfin tuna
harvested with purse seines in the eastern tropical Pacific Ocean, and products
therefrom, to be exported to the United States, shall require that the
government of the exporting nation provide documentary evidence that -- **** [3] (ii) the average rate of that
incidental taking by the vessels of the harvesting nation is comparable to the
average rate of incidental taking of marine mammals by United States vessels in
the course of such harvesting, [4] except that the Secretary shall not
find that the regulatory program, or the average rate of incidental taking by
vessels, of a harvesting nation is comparable to that of the United States for
purposes of clause ... (ii) of this paragraph unless -- **** [5] (III) the total number of eastern
spinner dolphin [**29] ... incidentally taken by vessels
of the harvesting nation during the 1989 and subsequent fishing seasons does
not exceed 15 percent of the total number of all marine mammals incidentally taken
by such vessels in such year and the total number of coastal spotted dolphin
... incidentally taken by such vessels in such seasons does not exceed 2
percent of the total number of all marine mammals incidentally taken by such
vessels in such year.
16
U.S.C. § 1371 (a)(2), (numbers in
brackets added for reference).
Unlike
the incidental taking provision discussed earlier, the above provision does not
require that the new standard go into effect by the end of the 1989 fishing
season, but instead, requires that the new standard be applied to data from the
entire 1989 fishing season.
As
with the incidental taking rate provision, the above provision directs the
Secretary on to how to make the comparability findings necessary to overcome
the import ban on yellowfin tuna. The provision allows the Secretary to make a
finding of "comparable" only if the standards established in clause
[5], above are met.
The
plain language of the statute makes clear that the Secretary's finding is to be
made based [**30] upon information for the entire 1989 fishing
season ("during the 1989 ... fishing season"). Unlike the earlier
provision, the above provision does not make the new standard applicable
"by the end of the 1989 fishing season." In fact, it would make
little sense if the standard were to apply as of the beginning of 1990, since
the Secretary must make his findings based upon information for the entire 1989
calendar year, could not have been available until sometime after the
beginning of 1990.
In
other words, the Secretary of the Treasury still must ban foreign tuna unless
the foreign government provides evidence of the comparability of its incidental
takings, and the Secretary finds those takings to be "comparable" to
those of the United States fleet. Such finding of comparability is not allowed
unless the percentages of the above mentioned species are below the established
levels for the entire 1989 fishing season.
Since
the statute requires this finding to be based upon data for the entire previous
year, it must allow the Secretary time to compile such data. The provision,
unlike the above provision, does not include a specific date at which time the
new comparability standard [**31] becomes effective. Given that the Secretary
had for several years published in the Federal Register that annual data on
marine mammal takings was due from foreign nations by July 31 of the following
year, it seems likely that Congress intended for this deadline to remain in
effect. Since that deadline is now passed, the defendant should make a prompt
decision, based on the data submitted, as to whether the foreign nations met
the above criteria in the 1989 season. If the criteria were not met for the
1989 fishing season, the Secretary may not deem the marine mammal takings to be
"comparable," and tuna imports from that country must be banned.
[*975] POSSIBILITY OF
IRREPARABLE INJURY
Since
plaintiffs have demonstrated a likelihood of success on the merits based upon
one of the two provisions relied upon, for purposes of a preliminary
injunction, this Court must determine whether plaintiffs have also demonstrated
a possibility of irreparable injury. Miss World (UK) Ltd. v. Mrs. America Pageants, Inc., 856 F.2d
1445, 1448 (9th Cir. 1988).
Congress
clearly intended the statutory scheme it established to reduce unnecessary
dolphin deaths. The Secretary of Commerce's failure to enforce the [**32]
statute's clear requirements interferes with this scheme, and therefore
assures the continued slaughter of dolphins. The statute was intended to use
access to the United States market as an incentive for foreign nations to
reduce marine mammal deaths. The Secretary, contrary to Congressional intent,
has not provided that incentive.
Absent
a preliminary injunction there is a possibility of irreparable injury, in that
foreign nations which continue to import yellowfin tuna into the United States
may continue to engage in purse seine fishing practices, including
"setting on dolphins," which result in the unnecessary deaths of
dolphins, in clear contravention of the intent of the statute. This is exactly the type of injury which the
statute was designed to prevent. This Court held in its February 15, 1989 Order
in this case, granting plaintiffs' motion for preliminary injunction requiring
100% coverage in the United States purse seine tuna boat observer program, that
the risk of unnecessary dolphin deaths and injury to the dolphin population was
a sufficient display of the possibility of irreparable injury to justify the
granting of a preliminary injunction. Other Courts have held similarly. [**33]
In Balelo v. Baldrige, 724 F.2d 753, 768 (9th Cir. 1984), cert.
den., 467 U.S. 1252, 104 S. Ct. 3536, 82 L. Ed. 2d 841 (1984), Judge
Nelson stated in his concurring opinion, in consideration of various provisions
of the MMPA designed to prevent marine mammal deaths, "if the world loses
great diversity, it has truly suffered irreparable harm." Similarly, in Kokechik
Fishermen's Ass'n v. Secretary of Commerce, 268 U.S. App. D.C. 116, 839 F.2d 795 (D.C. Cir. 1988), the D.C.
Circuit Court affirmed the grant of a preliminary injunction predicated on the
irreparable injury which might be inflicted upon marine mammals as a result of
certain violations of the MMPA.
Simply
put, the continued slaughter and destruction of these innocent victims of the
economics of fishing constitutes an irreparable injury to us all, and certainly
to the mammals whom Congress intended to protect. Indeed, for those species now threatened with extinction, the
harm may be irreparable in the most extreme sense of that overused term.
Moreover,
even on the alternative standard of requiring the balancing of hardship,
plaintiffs prevail. As the Supreme Court stated in Amoco Production Co. v.
Gambell, 480 U.S. 531, 545, 94 L. Ed. 2d 542, 107 S. Ct. 1396, 1404 (1987),
"environmental injury, by its
[**34] nature, can seldom be
adequately remedied by money damages and is often permanent or at least of long
duration, i.e., irreparable. If such injury is sufficiently likely,
therefore, the balance of harms will usually favor the issuance of an
injunction to protect the environment." The D.C. District Court relied
upon this language from Amoco, in granting a preliminary injunction
under the MMPA in Federation of Japan Salmon Fisheries v. Baldridge, 679 F.
Supp. 37, 48 (D.D.C. 1987). As the Court noted, the purely economic harm
suffered by foreign fishing interests as a result of the enforcement of the
MMPA is outweighed by "the interests of the marine mammal populations at
stake in this case. This is especially apparent when the public interest in
protecting the environment is considered." Id. "The public interest
does not lie in protecting the economic well-being of the Federation fishermen,
but, as clearly required by the MMPA, in carrying out Congress' will in
protecting the marine mammals and maintaining the health and stability of the
marine ecosystem." Id. at 49.
For
the foregoing reasons and after careful consideration of motions, legal
memoranda, exhibits, and argument
[**35] of the parties, and
consistent with the accompanying memorandum Opinion, IT IS HEREBY ORDERED that: [*976]
1. Defendant Secretary of the Treasury, his successors, agents,
employees and assigns, are enjoined and restrained from allowing the
importation into the United States of commercial yellowfin tuna or yellowfin
tuna products harvested with purse seines in the Eastern Tropical Pacific by
any foreign nation, unless and until the Secretary of Commerce makes a positive
finding based upon documentary evidence provided by the government of the
exporting nation that the average rate of the incidental taking by vessels of
such foreign nation is no more than 2.0 times that of United States vessels
during the same period.
2.
Defendants Secretary of Commerce, Administrator of the National Oceanic and
Atmospheric Administration, and Assistant Administrator of the National Marine
Fisheries Service, their successors, agents, employees and assigns, are
restrained and enjoined from certifying any foreign nation, or extending the
certification of any foreign nation, to import commercial yellowfin tuna or
yellowfin tuna products harvested with purse seines in the Eastern Tropical
Pacific by any foreign [**36] nation unless and until the Secretary of
Commerce makes the affirmative findings set forth in Paragraph 1 above with
respect to a foreign nation seeking to import such products.
3.
Defendants Secretary of Commerce, Administrator of the National Oceanic and
Atmospheric Administration, and Assistant Administrator of the National Marine
Fisheries Service, their successors, agents, employees and assigns, shall
immediately revoke any certification for any foreign nation currently importing
commercial yellowfin tuna or yellowfin tuna products harvested with purse
seines in the Eastern Tropical Pacific into the United States in contravention
of the substantive and procedural requirements of the Marine Mammal Protection
Act set forth in paragraph 1 above. IT IS SO ORDERED.
|
Internet
Guide to International Fisheries Law |
