Earth Island Institute v. Christopher

Page 597

942 F.Supp. 597

EARTH ISLAND INSTITUTE, a California Nonprofit Corporation; Todd Steiner; The American Society for the Prevention of Cruelty to Animals, a New York Nonprofit Corporation; and The Humane Society of the United States, a Delaware Nonprofit Corporation, The Sierra Club, a California Nonprofit Corporation; and The Georgia Fishermen's Association, Inc., a Georgia Corporation, Plaintiffs, v. Warren CHRISTOPHER, Secretary of State; Robert E. Rubin, Secretary of Treasury; Elinor G. Constable, Assistant Secretary of State for the Bureau of Oceans, International Environmental, and Scientific Affairs; Michael Kantor, Secretary of Commerce; and Rolland A. Schmitten, Assistant Administrator for Fisheries, National Marine Fisheries Service, Defendants and National Fisheries Institute, Inc., Intervenor-Defendant.

Slip Op. 96-165.

Court No. 94-06-00321.

United States Court of International Trade.

October 8, 1996.

Legal Strategies Group, Joshua R. Floum, Emerville, CA, for plaintiffs.

Frank W. Hunger, Assistant Attorney General; Lois J. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, Jeffrey M. Telep and Environment & Natural Resources Division, Eileen Sobeck and Christiana P. Perry, U.S. Department of Justice; and Office of the Legal Adviser, U.S. Department of State, David Balton, Office of General Counsel, National Oceanic and Atmospheric Administration, Jason Patlis, and Office of the Chief Counsel, U.S. Customs Service, Lou Brenner, Jr., of counsel, for defendants.

Garvey, Schubert & Barer, Eldon V.C. Greenberg, Washington, DC, for intervenor-defendant.

Opinion & Order

AQUILINO, Judge:

In the wake of the court's opinion of December 29, 1995 herein, 19 CIT ___, 913 F.Supp. 559, appeals dismissed, 86 F.3d 1178 (Fed.Cir.1996), and final judgment in accordance therewith and with subsequent slip op. 96-62, 20 CIT ___, 922 F.Supp. 616 (1996), the defendants have promulgated (and formally filed) Dep't of State, Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 61 Fed.Reg. 17,342 (April 19, 1996), and Dep't of State, Bureau of Oceans and Int'l Environmental and Scientific Affairs; Certifications Pursuant to Section 609 of Public Law 101-162, 61 Fed.Reg. 24,998 (May 17, 1996).

Whereupon the plaintiffs returned to court with a motion to enforce the judgment on the grounds that these administrative responses are not in conformity with it and the underlying statute.¹ And a hearing was held.

I

While much has been said and written to date in and about this case, the law at its core is quite succinct. In part (b)(1) of Pub.L. No. 101-162, § 609, 103 Stat. 988, 1038, 16 U.S.C. § 1537 note (1989), Congress has provided that the importation into the United States of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely endangered species of sea turtles "shall be prohibited not later than May 1, 1991, except as provided in paragraph (2)", to wit:

(2) CERTIFICATION PROCEDURE. — The ban on importation of shrimp or products from shrimp pursuant to paragraph (1) shall not apply if the President shall determine and certify to the Congress not later than May 1, 1991, and annually thereafter that —

(A) the government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and

(B) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or

(C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting.

And the court has concluded that this statute is unambiguous and therefore in its April 10, 1996 final judgment

ORDERED, ADJUDGED and DECREED that the defendants are not properly enforcing Pub.L. No. 101-162, § 609(b) ... by restricting its mandate to the Gulf of Mexico-Caribbean Sea — western Atlantic Ocean; and ... further

ORDERED that the defendants ... prohibit not later than May 1, 1996 the importation of shrimp or products from shrimp wherever harvested in the wild with commercial fishing technology which may affect adversely those species of sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of Commerce on June 29, 1987, 52 Fed. Reg. 24,244, except as provided in Pub.L. No. 101-162, § 609(b)(2)....

The State Department's notice published on May 17, 1996 reports in part:

A December, 1995 U.S. Court of International Trade decision expanded the scope of Section 609 to include all countries which harvest shrimp. On April 30, 1996, the Department of State certified that 36 of the affected countries have met the requirements of the law. As a result, shrimp imports from all other countries harvested with commercial fishing technology which may adversely affect sea turtles were prohibited pursuant to Section 609 effective May 1, 1996. The ban on shrimp imports from Suriname (in effect since May 1, 1993) and French Guiana (in effect since May 1, 1992) remain in place.

The countries that were certified on April 30, 1996[] are Argentina, the Bahamas, Belgium, Belize, Brunei, Canada, Chile, Colombia, Costa Rica, Denmark, the Dominican Republic, Ecuador, El Salvador, Germany, Guatemala, Guyana, Haiti, Iceland, Indonesia, Ireland, Jamaica, Mexico, the Netherlands, New Zealand, Nicaragua, Norway, Oman, Panama, Peru, Russia, Sri Lanka, Sweden, Trinidad and Tobago, the United Kingdom, Uruguay and Venezuela.

Of these, the Department certified that the fishing environment in some countries does not pose a threat of the incidental taking of sea turtles protected by Section 609. The following 15 nations have shrimp fisheries only in cold waters where there is essentially no risk of taking sea turtles: Argentina, Belgium, Canada, Chile, Denmark, Germany, Iceland, Ireland, the Netherlands, New Zealand, Norway, Russia, Sweden, the United Kingdom, and Uruguay. The following 8 nations only harvest shrimp using manual rather than mechanical means to retrieve nets: the Bahamas, Brunei, the Dominican Republic, Haiti, Jamaica, Oman, Peru and Sri Lanka. Use of such small-scale technology does not adversely affect sea turtles.

The following countries were certified as having adopted programs to reduce the incidental capture of sea turtles in shrimp fisheries comparable to the program in effect in the United States: Belize, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Guyana, Indonesia, Mexico, Nicaragua, Panama, Trinidad and Tobago, and Venezuela.

* * * * * *

As is clear from the revised guidelines issued by the Department of State on April 19, 1996, the implementation of the Court of International Trade's order has required certain procedural refinements. The Department will keep these guidelines under close review throughout the upcoming year to ensure the effective implementation of Section 609, and will carefully review their effectiveness and enforceability before making any 1997 certifications. It is the intention of the Department to promote the development of comprehensive TED programs in all harvesting nations where shrimp trawl fisheries pose a risk to sea turtles....

61 Fed.Reg. at 24,999.

A

Plaintiffs' motion to enforce focuses on those revised guidelines issued on April 19, 1996, in particular that part of their preamble which announces that the

Department of State has determined that import prohibitions imposed pursuant to Section 609 do not apply to shrimp or products of shrimp harvested ... by commercial shrimp trawl vessels using TEDs comparable in effectiveness to those required in the United States.

* * * * * *

Shrimp Exporter's Declaration. The Department of State has determined that, in order to achieve effective implementation of Section 609 on a world-wide basis, beginning May 1, 1996, all shipments of shrimp and products of shrimp into the United States must be accompanied by a declaration (DSP-121, revised) attesting that the shrimp accompanying the declaration was harvested either under conditions that do not adversely affect sea turtles (as defined above) or in waters subject to the jurisdiction of a nation currently certified pursuant to Section 609. All declaration[s] must be signed by the exporter of the shrimp. A government official of the harvesting nation must also sign those declarations asserting that the accompanying shrimp was harvested under conditions that do not adversely affect sea turtles. The declaration must accompany the shipment through all states of the export process, including in the course of any transshipments and of any transformation of the original product.

61 Fed.Reg. at 17,343. The plaintiffs condemn this approach as "dangerous" and "disingenuous" because it

eliminates any incentive for countries to put TEDs on more than a handful of nets. Countries can evade the Law's embargo by exporting to the United States those shrimp caught by a few designated vessels which are equipped with TEDs, while exporting elsewhere shrimp caught by those which are not. This eviscerates both of Congress' purposes in enacting the Turtle Law. It fails to create the level playing field which Congress undeniably sought for the U.S. fleet, which is required to put TEDs on each and every vessel. It also guts the Law's objective of protecting these endangered species — for substantial portions of the shrimping fleets of exporting nations may now eschew TEDs with impunity.²

Whereupon they requested that the court compel the defendants to "embargo all wildcaught shrimp exports from...