Earth Island Institute v. Christopher

913 F. Supp. 559

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; Ronald Brown, 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. 95-208. Court No. 94-06-00321.

United States Court of International Trade.

December 29, 1995.

COPYRIGHT MATERIAL OMITTED

Heller, Ehrman, White & McAuliffe (Joshua R. Floum, Nicole J. Walthall and James L. Williams), San Francisco, CA, and Eugene Underwood, Jr. and Jamie H. Cotel, New York City, 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 (James C. Kilbourne and Christiana P. Perry), U.S. Department of Justice; and Office of Legal Adviser, U.S. Department of State (David Balton), Office of General Counsel, National Oceanic and Atmospheric Administration (Jason Patlis) and Office of Chief Counsel, U.S. Customs Service (Lou Brenner, Jr.), of counsel, Washington, DC, for defendants.

Garvey, Schubert & Barer (Eldon V.C. Greenberg) for intervenor-defendant and (Harold G. Bailey, Jr.) Washington, DC, for government of the Republic of Ecuador, amicus curiae.

Opinion & Order

AQUILINO, Judge:

Science and government have apparently come to agree that the turtles which have navigated Earth's oceans for millions of years may not survive modern human habits (and appetites) without the intervention of law. In the United States, the Congress has adopted the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and more recently Pub.L. No. 101-162, 103 Stat. 988 (1989). Under ESA, four species of sea turtle have been listed as "endangered", while another is considered "threatened". The part of Pub.L. No. 101-162 which is at the core of this case, and which therefore must be set forth in toto, is as follows:

Sec. 609. (a) The Secretary of State, in consultation with the Secretary of Commerce, shall, with respect to those species of sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of Commerce on June 29, 1987—

(1) initiate negotiations as soon as possible for the development of bilateral or multilateral agreements with other nations for the protection and conservation of such species of sea turtles;

(2) initiate negotiations as soon as possible with all foreign governments which are engaged in, or which have persons or companies engaged in, commercial fishing operations which, as determined by the Secretary of Commerce, may affect adversely such species of sea turtles, for the purpose of entering into bilateral and multilateral treaties with such countries to protect such species of sea turtles;

(3) encourage such other agreements to promote the purposes of this section with other nations for the protection of specific ocean and land regions which are of special significance to the health and stability of such species of sea turtles;

(4) initiate the amendment of any existing international treaty for the protection and conservation of such species of sea turtles to which the United States is a party in order to make such treaty consistent with the purposes and policies of this section; and

(5) provide to the Congress by not later than one year after the date of enactment of this section—

(A) a list of each nation which conducts commercial shrimp fishing operations within the geographic range of distribution of such sea turtles;

(B) a list of each nation which conducts commercial shrimp fishing operations which may affect adversely such species of sea turtles; and

(C) a full report on—

(i) the results of his efforts under this section; and

(ii) the status of measures taken by each nation listed pursuant to paragraph (A) or (B) to protect and conserve such sea turtles.

(b)(1) IN GENERAL.—The importation of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely such species of sea turtles shall be prohibited not later than May 1, 1991, except as provided in paragraph (2).

(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 to such harvesting.

103 Stat. at 1037-38, 16 U.S.C. § 1537 note. The controversy focuses on compliance with and enforcement of part (b) of this section 609.

I

The subject-matter jurisdiction of this court over the controversy has been established. E.g., Earth Island Institute v. Christopher, 6 F.3d 648 (9th Cir.1993). And in 19 CIT ___, 890 F.Supp. 1085 (1995), familiarity with which is presumed, the court denied defendants' threshold motion to dismiss part of the complaint.

By the time of that decision, the plaintiffs had interposed a motion for summary judgment, encompassing, among other requested relief, (a) a declaration that the defendants are not properly enforcing the foregoing section 609(b) by restricting its mandate to the Gulf of Mexico-Caribbean Sea-western Atlantic Ocean, failing to evaluate the actual incidental-sea-turtle-take comparability of each country covered by the statute and failing to impose import prohibitions on shrimp and shrimp products in a timely manner; (b) an embargo of that seafood from all countries covered by the statute unless and until the defendants have certified them as prescribed by section 609(b)(2); and (c) striking existing guidelines in regard thereto as violative of the Administrative Procedure Act. The defendants and the intervenor-defendant have now responded with motions of their own for summary judgment. Necessarily in conformity with CIT Rule 56(i), each side has filed a statement of material facts as to which it contends there is no genuine issue to be tried. They are, among others:

• Based on studies conducted in the Gulf of Mexico and Atlantic Ocean, the Department of Commerce's National Marine Fisheries Service ("NMFS") issued regulations pursuant to ESA which now require U.S. shrimp trawlers in those waters to use approved turtle-excluder devices or "TEDs"¹ at all times.

• In the face of continuing concern over sea-turtle protection and of opposition by domestic shrimpers to the TEDs, Congress enacted section 609 in an effort to encourage similar regulatory measures for foreign shrimp trawlers.

• Australia, Bahrain, Bangladesh, Belize, Brazil, Brunei, Burma, Cameroon, Canada, Chile, China, Colombia, Costa Rica, Ecuador, Egypt, El Salvador, France, French Guiana, The Gambia, Ghana, Greece, Guatemala, Guyana, Haiti, Honduras, Hong Kong, India, Indonesia, Italy, Ivory Coast, Jamaica, Japan, Kenya, Kuwait, Madagascar, Malaysia, Mexico, Micronesia, Morocco, Mozambique, Namibia, New Zealand, Nigeria, Oman, Pakistan, Panama, Peru, Philippines, Republic of Korea, Republic of Seychelles, Republic of Singapore, Spain, Sri Lanka, Suriname, Taiwan, Tanzania, Thailand, Trinidad & Tobago, Tunisia, Turkey, United Arab Emirates and Venezuela have been identified, among others, as countries which have persons or companies engaging in commercial fishing practices which may affect adversely those species of sea turtle protected by U.S. law and which export shrimp or products of shrimp to the United States.

• The President has delegated his authority under section 609(b) to the Secretary of State, who, in turn, has relegated it to the Under Secretary of State for Economic and Agricultural Affairs.

• After consulting with the NMFS, the Department of State has issued guidelines for compliance with and enforcement of section 609(b).

• To date, the defendants have applied section 609 only to countries in the restricted ocean area(s), namely, Mexico, Belize, Guatemala, Honduras, Nicaragua, Costa Rica, Panama, Colombia, Venezuela, Trinidad & Tobago, Guyana, Suriname, French Guiana and Brazil.

• The defendants have not applied section 609 to date to the Pacific-Ocean fleets of Mexico, Guatemala, Honduras, Nicaragua, Costa Rica, Panama and Colombia.

• The defendants have not evaluated incidental sea-turtle-take-comparability statistics for foreign shrimp-fishing nations, presuming instead take levels equivalent to those for U.S. trawlers.

Of course, these are not the only facts material to this case: the others are referred to and relied on hereinafter. Nor can it be said that the parties are in agreement on all of them. Each side appears to agree, however, that the case can be finally decided on the motions presented; that is, there is no dispute over facts which requires trial.

After review and consideration of all of the...