Turtle Island Restoration Network v. Evans, 00-1569.

284 F.3d 1282

TURTLE ISLAND RESTORATION NETWORK, Todd Steiner, The American Society for the Prevention of Cruelty to Animals, The Humane Society of the United States, and The Sierra Club, Plaintiffs-Appellants, v. Donald L. EVANS, Secretary of Commerce, Colin L. Powell, Secretary of State, Paul H. O'Neill, Secretary of the Treasury, David B. Sandlaw, Assistant Secretary of State for the Bureau of Oceans and International Environmental and Scientific Affairs, Penelope D. Dalton, Assistant Administrator for Fisheries, National Marine Fisheries Service, and Alan P. Larson, Under Secretary of State for Economic, Business and Agricultural Affairs, Defendants-Cross Appellants, and National Fisheries Institute, Inc., Defendant-Cross Appellant.

No. 00-1569.

No. 00-1581.

No. 00-1582.

United States Court of Appeals, Federal Circuit.

DECIDED: March 21, 2002.

Joshua R. Floum, Legal Strategies Group, of Emeryville, California, argued for plaintiffs-appellants. With him on the brief was Ariela F. St. Pierre.

M. Alice Thurston, Attorney, Environment and Natural Resources Division, Appellate, Department of Justice, of Washington, DC, argued for defendants-cross appellants. With her on the brief were John C. Cruden, Deputy Assistant Attorney General; Jane P. Davenport, and Ellen J. Durkee, Attorneys, Wildlife & Marine Resources Section. Of counsel were David M. Cohen, Director; Lucius B. Lau, Jeffrey C. Dobbins, and Jean E. Williams, Attorneys; Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC. Also of counsel were Anne V. Liu, Attorney, National Oceanic & Atmosph. Administration; and Violanda Botet, Attorney Advisor, Department of State; Pamela B. Lawrence, Attorney, Department of Commerce, of Washington, DC. Eldon V.C. Greenberg, Attorney, Garvey Schubert, of Washington, DC, for National Fisheries Institute, Inc.

Before NEWMAN, CLEVENGER, and SCHALL, Circuit Judges.

CLEVENGER, Circuit Judge.

This case concerns the implementation of section 609(b) of Public Law 101-162, which prohibits the import of shrimp which have been harvested with fishing technology that may harm sea turtles. Despite having ruled that the government's regulations implementing section 609(b) were not in accordance with that statute, the Court of International Trade refused to enter an injunction directing the government to comply with the law. Plaintiffs, a coalition of environmental organizations and concerned citizens ("Turtle Island"), appeal the Court of International Trade's decision to withhold both an injunction and attorney fees under the Equal Access to Justice Act. Defendants, government officials charged with implementing section 609(b), cross-appeal the judgment of the Court of International Trade that their regulations violate the statute. We hold that the government's regulations are a permissible implementation of the statute and that Turtle Island is not entitled to injunctive relief or attorney fees.

BACKGROUND

Since 1987, United States regulations have required that shrimp trawlers generally install turtle excluder devices ("TEDs") when operating in United States waters where sea turtles are to be found. 50 C.F.R. §§ 223.206, 223.207 (2001). Shrimpers sweep many other denizens of the sea ("bycatch") into their nets when they trawl for shrimp. But unlike fish or shrimp, sea turtles are reptiles and must breathe air. While sea turtles can remain submerged for up to 90 minutes at a time, trawl nets typically are deployed for periods longer than 90 minutes before being hauled up. Sea turtles will drown if they are caught in shrimp nets and held underwater for long periods of time. When fitted into trawl nets, TEDs prevent sea turtles from being retained in the nets— typically by means of a metal grid barring entry to the closed end of the net. The grid bars are spaced so as to let shrimp pass through the grid into the closed end of the net, but the much larger sea turtles cannot pass through and are instead directed out an "escape hatch" above or below the grid.

The domestic shrimp industry strongly opposed the imposition of TED requirements in United States waters. See, e.g., State of Louisiana, ex rel. Guste v. Verity, 853 F.2d 322 (5th Cir.1988). However, the case before us concerns not domestic regulations, but arises instead from nearly a decade's worth of litigation over the enforcement of a statute designed to impose TEDs on shrimping vessels of foreign nations: The Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1990, Pub.L. 101-162, Title VI, § 609, 103 Stat. 1037 (1989) (codified at 16 U.S.C. § 1537 note (2000)) ("section 609").

The full text of section 609 is as follows:

(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 (Nov. 21, 1989) —

(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 of such harvesting.

Section 609 is divided into two parts, (a) and (b). Part (a) directs the Secretary of State to initiate international negotiations with the aim of protecting those species of sea turtles protected by the domestic TED requirements.¹ Part (b)(1) restricts the importation of shrimp which have been harvested in a manner that may endanger those species of sea turtles. Part (b)(2) establishes a certification procedure,² by which nations are exempted from the ban either if they have adopted regulatory measures reducing the incidental catch of sea turtles (e.g., a requirement that their shrimp fleets be equipped with TEDs), or if their operations do not pose any threat to sea turtles (e.g., no endangered turtles inhabit the waters fished by that nation).

This case requires us to decide whether section 609(b)(2)'s certification procedure is the only way a foreign nation may comply with section 609(b). Under the State Department's current regulations (Revised Guidelines for the Implementation of Section 609 of Public Law 101-162 Relating to the Protection of Sea Turtles in Shrimp Trawl Fishing Operations, 64 Fed.Reg. 36,946 (July 8, 1999) ("the 1999 Guidelines")), shrimp may be imported into the United States under one of two conditions. If the exporter attests that the nation in which the shrimp originated (that is, in whose waters the shrimp were harvested) has been certified under section 609(b)(2), the shrimp may be imported without further ado. Alternatively, if the country of origin has not been certified under section 609(b)(2), shrimp harvested in its waters may still enter the United States if both the exporter and an official of the harvesting nation attest that the individual shipment of shrimp in question was harvested under conditions that do not adversely affect sea turtles. Shipments meeting these conditions include those of aquaculture-grown shrimp, hand-caught shrimp, and shrimp harvested by vessels equipped with TEDs.³ Thus, under the government's interpretation of section 609, a country may export shrimp to the United States either by requiring its entire fleet to be equipped...