Humane Soc. of U.S. v. Clinton

44 F.Supp.2d 260

THE HUMANE SOCIETY OF THE UNITED STATES, Humane Society International, Defenders of Wildlife, Plaintiffs, v. William J. CLINTON, President, William M. Daley, Secretary of Commerce, Madeleine K. Albright, Secretary of State Defendants.

Slip op. 99-23.

Court No. 98-03-00557.

United States Court of International Trade.

March 5, 1999.

COPYRIGHT MATERIAL OMITTED

Earthjustice Legal Defense Fund (Yuki Ishizuka, Patti Goldman) for Plaintiffs.

David W. Ogden, Acting Assistant Attorney General, Lois J. Schiffer, Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Lucius B. Lau), Eileen Sobeck, Chief, Environment and Natural Resources Division Wildlife and Marine Resources Section (Mark A. Brown), Violanda Botet, Attorney-Adviser, Office of the Legal Advisor, United States Department of State, of counsel, Margaret F. Hayes, Assistant General Counsel for Fisheries National Oceanic and Atmospheric Administration, United States Department of Commerce, of counsel, for Defendants.

OPINION

BARZILAY, District Judge.

I. PROCEDURAL HISTORY

In 1992 Congress passed the High Seas Driftnet Fisheries Enforcement Act, Pub.L. No. 102-582, 106 stat. 4900 (1992) (the "Driftnet Act"). This Act was one in a series of United States and international enactments with the purpose of reducing the detrimental effects on sea life caused by the use of large-scale driftnets in fisheries around the world.¹

The Driftnet Act required, among other actions, that the Secretary of Commerce publish a list of nations whose nationals or vessels conduct large scale driftnet fishing beyond the exclusive economic zone of any nation, not later than 30 days after November 2, 1992 and that those nations be denied United States port privileges. See 16 U.S.C. § 1826a(a)(1)-(2) (1994). In addition, the Driftnet Act provides for ongoing action requiring the Secretary of Commerce to add to the list if a "reason to believe" exists that such activity is taking place. See 16 U.S.C. § 1826a(a)(1), 1826a(b)(B) (1994).

Once such an identification is made, vessels of that nation are to be denied port privileges in the United States, 16 U.S.C. § 1826a(a)(2), the President is to enter into consultations with the government of the identified country to effect an agreement that will immediately terminate the driftnet fishing, 16 U.S.C. § 1826a(b)(2), and if consultations "are not satisfactorily concluded within 90 days," the President is to direct the Secretary of the Treasury to prohibit importations of fish and other related products from that country into the United States.² 16 U.S.C. § 1826a(b)(3). No action was taken by any of the governmental entities named in the Driftnet Act and in May 1995, Plaintiffs³ filed suit for preliminary relief to compel the Secretary of Commerce to identify Italy. The Court found that Plaintiffs had standing to bring suit and that the government's inaction could be reviewed despite the lack of final agency action or a determination on the record. The Court ordered limited discovery but denied the application for a preliminary injunction. See Humane I.⁴

Plaintiffs next filed a motion for summary judgment pursuant to USCIT R. 56 compelling identification of Italy under the Driftnet Act. Defendants countered with a motion for judgment upon an agency record pursuant to USCIT R. 56.1 opposing such identification. The Court held that the case was properly before it pursuant to USCIT R. 56, that plaintiffs had standing to pursue the matter, that the Secretary of Commerce had reason to believe that Italian nationals were conducting large scale driftnet fishing and that, therefore, the decision not to identify was an abuse of discretion. See Humane Society v. Brown, 920 F.Supp. 178 (CIT 1996) ("Humane II").

This decision prompted the following actions on the part of the relevant United States government agencies. On March 28, 1996, the Secretary of Commerce ("Secretary") 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 and the Secretary of State of Italy's identification. AR 6. Pursuant to the identification, the Secretary of the Treasury was directed, through an April 29, 1996, Federal Register Notice, to require certification of Italian fish and fish products under the Dolphin Protection Consumer Information Act. AR 8.

Acting through the Department of State, the President entered into consultations with Italy, which are required by the Driftnet Act. On July 22, 1996 and July 25, 1996, the Italian government sent documents formalizing its agreement with the U.S. ("Agreement") to end driftnet fishing by its nationals and vessels. AR 11, 13. The U.S. informed Italy on July 26, 1996, that its proposals were sufficient to avoid the imposition of sanctions under the Driftnet Act. AR 12. The Secretary of Commerce certified to the President and Congress on January 7, 1997, that Italy had terminated illegal driftnet fishing. Accordingly, the certification requirement for Italian fish and fish products was lifted.

Despite these actions and others that are described elsewhere in this opinion, Plaintiffs allege that illegal driftnet fishing by Italian nationals and vessels continues in the Mediterranean Sea. Plaintiffs brought this second action by summons and complaint on March 18, 1998, asking this Court for injunctive and declaratory relief against the President and the Secretary of Commerce.

A. Facts⁵

Driftnet fishing is an indiscriminate method of fishing. Driftnets consist of single or multiple panels of non-degradable plastic webbing which can be joined in links up to 30 kilometers long. Fishers deploy the nets 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 net. The driftnets are deployed at night when they are less visible to marine life and are allowed to drift with the winds and currents. The nets catch virtually all fish, marine mammals such as whales and dolphins, sea turtles, sea birds, and other marine wildlife. The fish and wildlife are captured when the mesh is caught behind their gills, or when they simply become entangled in the mesh. At dawn, fishers collect the driftnets, remove the target fish, and discard any non-target species caught in the net.

In 1991, the United Nations General Assembly passed numerous resolutions calling for a worldwide moratorium on large-scale high seas driftnets. The European Union adopted the U.N. Moratorium through a regulation and the United States, as noted above, passed the Driftnet Act.

Plaintiffs bring the present action requesting the Court to issue a writ of mandamus directing the President to impose sanctions on Italy, to enjoin the Secretary of Commerce to rescind his January 7, 1997 certification of Italy and, in the alternative, to enjoin the Secretary of Commerce to find that there is reason to believe Italy is a nation whose nationals or vessels are continuing to conduct large-scale driftnet fishing beyond the exclusive economic zone of any nation.

B. Summary Judgment

This case is before the Court on the parties' cross motions for summary judgment. Under USCIT R. 56(d), summary judgment is appropriate if, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Neither party disputes the existence of the material facts at issue; the questions presented are purely legal and thus appropriately disposed of through summary judgment.

II. RULE 56

Defendants moved under USCIT R. 56.1 for Judgment Upon an Agency Record, while Plaintiffs moved for Summary Judgment under USCIT R. 56. The Court finds that USCIT R. 56 is the applicable rule and thus treats Defendants' Motion for Judgment Upon an Agency Record as a cross-motion for summary judgment. When cross-motions for summary judgment are before the Court "[e]ach party carries the burden on its own motion to show entitlement to judgment as a matter of law ...." Massey v. Del Labs., 118 F.3d 1568, 1573 (Fed.Cir.1997).

In the previous litigation between the parties the Court decided in Plaintiffs' favor that USCIT R. 56 governed as opposed to USCIT R. 56.1. See Humane II, 920 F.Supp. at 182-83. The reasoning in that decision is equally relevant in the case presently before the Court. In Humane II, the Court examined what constitutes a record by comparing 28 U.S.C. § 2635(d)(1), USCITR. 72(a) and the Administrative Procedure Act ("APA") noting that the contested determination was not published in the Federal Register, nor were there hearings, conferences or a report upon which the decision was based. See Humane I, 901 F.Supp. at 350; Humane II, 920 F.Supp. at 183. Here, although Defendants have instituted an informal agency consultation process and submitted the Secretary's memorandum upon which the decision is based,⁶ there still is no publication in the Federal Register, nor were other formal APA rulemaking procedures followed.

USCIT R. 56.1 requires the movant to address the administrative determination by referencing the Federal Register Notice. The relevant statute, 28 U.S.C § 2635(d), upon which USCITR. 72(a) is styled requires the submission of the contested determination, along with findings or reports, transcripts of hearings or conferences and any other material received by the agency. In this case, there are two documents which could embody the contested determination: the Secretary's January 7, 1997 certification letter and the October 21, 1998 decision memorandum. These were records of informal agency consultations, but Defendants contend that these are not reviewable since the...