Human Society of U.S. v. Clinton

Page 1320

236 F.3d 1320 (Fed. Cir. 2001)

THE HUMANE SOCIETY OF THE UNITED STATES, HUMANE SOCIETY INTERNATIONAL, and DEFENDERS OF WILDLIFE, Plaintiffs-Appellants, v. WILLIAM J. CLINTON, President, NORMAN Y. MINETA, Secretary of Commerce, and MADELEINE K. ALBRIGHT, Secretary of State, Defendants-Appellees.

99-1360

United States Court of Appeals for the Federal Circuit

DECIDED: January 4, 2001

Appealed from: United States Court of International Trade Judge Judith M. Barzilay

Patti A. Goldman, Earthjustice Legal Defense Fund, of Seattle, Washington, argued for plaintiffs-appellants.

Lucius B. Lau, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendants-appellees. With him on the brief were David W. Ogden, Assistant Attorney General; Lois J. Schiffer, Assistant Attorney General; and David M. Cohen, Director. Of counsel were Mark A. Brown, Attorney;James C. Kilbourne, Attorney; and M. Alice Thurston, Attorney. Also of counsel wereViolanda Botet, Attorney, U.S. Department of State, of Washington, DC; and Margaret Hayes, Attorney, Department of Commerce, of Washington, DC.

Before CLEVENGER, Circuit Judge, PLAGER, Senior Circuit Judge, ^* and RADER,Circuit Judge.

Opinion for the court filed by Senior Circuit Judge PLAGER. Circuit Judge RADER concurs in the result.

PLAGER, Senior Circuit Judge.

The Humane Society of the United States, Humane Society International, and Defenders of Wildlife (collectively "Humane Society") appeal from a decision of the Court of International Trade. The Court of International Trade denied their request to issue a writ of mandamus directing the President to impose sanctions on Italy for violation of the Driftnet Fishing Act, 16 U.S.C. §§1826-1826g (Supp. IV 1998), and denied their request for an order requiring the Secretary of Commerce to rescind his certification that Italy had terminated large-scale driftnet fishing. The Court of International Trade did grant their petition regarding issuance of an order requiring the Secretary of Commerce, pursuant to 16 U.S.C. §1826a(b)(1)(B), again to identify Italy as a nation for which there is reason to believe its nationals or vessels are conducting large-scale driftnet fishing. Because the Court of International Trade did not err in its judgment, the judgment is affirmed.

BACKGROUND

Large-scale driftnet fishing is defined in 16 U.S.C. §1826c(2)(A) as "a method of fishing in which a gillnet composed of a panel or panels of webbing, or a series of such gillnets, with a total length of two and one-half kilometers or more is placed in the water and allowed to drift with the currents and winds for the purpose of entangling fish in the webbing." A fishing boat deploys the driftnets by suspending them vertically beneath the surface of the water, between buoys at the ocean surface and a weighted lead line at the bottom of the nets. The driftnets are deployed at night when they are less visible to marine life. Though intended to catch fish, the nets indiscriminately catch virtually all aquatic life including fish, whales, dolphins, sea turtles, and sea birds. The fish are captured when the mesh catches behind their gills, and the whales, dolphins, and other air-breathing sea life are caught when they become entangled in the net. At dawn, fishermen collect the driftnets, remove the target fish, and discard any non-target species, often drowned, that were caught in the nets.

In 1991, the United Nations General Assembly passed numerous resolutions calling for a worldwide moratorium on large-scale high seas driftnets. The resolutions were aimed primarily at driftnet fishing in the area of the seas beyond what is known in international law as the Exclusive Economic Zone ("the EEZ"). The EEZ is the area of the seas that lies within 200 nautical miles from the shore of a coastal nation; the area beyond the EEZ is known as the high seas.

In implementing the resolutions, the United States passed the High Seas Driftnet Fisheries Enforcement Act, Pub. L. No. 102-582, 106 Stat. 4900 (1992) (codified as amended at 16 U.S.C. §§1826-1826g) (the "Driftnet Act"). The Driftnet Act establishes a process under which the United States may take various actions against a foreign nation whose fishing vessels on the high seas engage in large-scale driftnet fishing, as the Act defines it. ¹ We will examine the provisions of the Act in detail below. For now, it will be enough to outline the way the Act works.

Whenever the Secretary of Commerce has reason to believe that the nationals or vessels of any nation are conducting large-scale driftnet fishing beyond the EEZ of any nation, the Secretary is to identify that nation, and notify the President and the nation of the identification. 16 U.S.C. §1826a(b)(1)(B).

Thereafter, the President is to enter into consultations with the government of the identified nation "for the purpose of obtaining an agreement that will effect the immediate termination of large-scale driftnet fishing by the nationals or vessels of that nation...." 16 U.S.C. §1826a(b)(2). If those consultations are not "satisfactorily concluded," the President is to order the Secretary of the Treasury to prohibit the importation into the United States of fish and fish products from that nation. 16 U.S.C. §1826a(b)(3)(A)(ii).

In addition, the Act provides that the Secretary of Commerce, after giving notice to the nations involved, is to publish periodically a list of nations whose nationals or vessels conduct large-scale driftnet fishing beyond the EEZ of any nation, and the Secretary of the Treasury shall thereafter deny entry of any such vessel to any place in the United States. 16 U.S.C. §1826a(a)(1)-(3). Denial of port privileges, as well as import sanctions if imposed, remain in effect until the Secretary of Commerce certifies to the President and the Congress that such nation has terminated large-scale driftnet fishing by its nationals and vessels beyond the EEZ. 16 U.S.C. §1826b.

In 1995, the Humane Society and other plaintiffs filed suit in the Court of International Trade. They alleged that, in the face of evidence to the contrary, the Secretary of Commerce had failed to identify Italy as a nation whose nationals or vessels conduct large-scale driftnet fishing in violation of the Driftnet Act. Humane Soc'y of the United States v. Brown, 901 F. Supp. 338, 345 (Ct. Int'l Trade 1995). Ultimately, the Court of International Trade agreed, and held that the Secretary of Commerce had reason to believe that Italian nationals were conducting large-scale driftnet fishing on the high seas and that, therefore, the decision not to identify was an abuse of discretion. Humane Soc'y of the United States v. Brown, 920 F. Supp. 178, 192-196 (Ct. Int'l Trade 1996). The Government did not appeal the decision. Pursuant to the trial court's decision, the Secretary of Commerce on March 28, 1996 identified Italy as a nation for which there was reason to believe its nationals or vessels were conducting large-scale driftnet fishing beyond the exclusive economic zone of any nation, and notified the President of Italy's identification.

Acting through the Department of State, the President entered into consultations with Italy. In July 1996, the Italian government sent documents formalizing its agreement with the United States to end proscribed driftnet fishing by its nationals and vessels. The United States informed Italy that its proposals were sufficient to avoid the imposition of sanctions under the Driftnet Act. Thereafter, on January 7, 1997, the Secretary of Commerce certified to the President and Congress that Italy had terminated illegal driftnet fishing.

This case arose when, in 1998, pursuant to the authority of 28 U.S.C. §1581(i) (1994), the Humane Society plaintiffs brought another suit in the Court of International Trade against the President and the Secretary of Commerce. The suit asked for injunctive and declaratory relief. The Humane Society alleged that, despite the earlier agreement, illegal driftnet fishing by Italian nationals and vessels continued in the Mediterranean Sea in the 1997 and 1998 fishing seasons. The Humane Society requested the trial court to issue a writ of mandamus directing the President to impose sanctions on Italy based on the 1996 identification, enjoin the Secretary of Commerce to rescind his January 7, 1997 certification of termination by Italy, and, in the alternative, enjoin the Secretary of Commerce again to order that there is reason to believe that Italy is a nation whose nationals or vessels are continuing to conduct large-scale driftnet fishing beyond the exclusive economic zone.

The Humane Society moved for summary judgment and the Government defendants filed cross motions for summary judgment. The trial court held in favor of the Government regarding the consequences attributable to the 1995-97 events. The court held that the President's duty to decide if talks with Italy had "satisfactorily concluded" was discretionary, and declined to issue a writ of mandamus requiring sanctions. Further, the trial court found that the Secretary of Commerce's January 7, 1997 certification of termination was not arbitrary, capricious or an abuse of discretion, since talks with Italy had concluded in a formal agreement to end driftnet fishing.

With regard to the state of affairs at the time of trial, the trial court reviewed the evidence presented by the Humane Society, which included data provided by the Italian government indicating 59 administrative violations, 33 administrative seizures, and 98.5 kilometers of net seized for violations during 1997. In addition, the United States Navy had sighted several vessels, suspected of being Italian, which were presumed to be engaging in illegal driftnet fishing. Also, Greenpeace reported twenty driftnet vessels in March of 1997; in 1998, nine violations were confirmed.

On the basis of this evidence, the trial court held that...