Balelo v. Klutznick
| Citation | 519 F. Supp. 573 |
| Decision Date | 24 July 1981 |
| Docket Number | No. 80-1646-GT(H).,80-1646-GT(H). |
| Court | U.S. District Court — Southern District of California |
| Parties | John R. BALELO, Andrew Castagnola, Leo Correia, Manuel S. Jorge, Bryan R. Madruga, Harold Medina, John A. Silva, Ralph F. Silva, Jr., George Sousa, Manuel S. Vargas, Jr., John B. Zolezzi, Jr., Plaintiffs, v. Philip M. KLUTZNICK, Secretary of Commerce of the U. S., Richard A. Frank, Administrator, National Oceanic and Atmospheric Administration and Terry Leitzell, Assistant Administrator for Fisheries, National Marine Fisheries Service, Defendants. Environmental Defense Fund, Inc., and Defenders of Wildlife, Intervenor-Defendants. |
Raymond F. Zvetina, Haskins, Nugent, Newnham, Kane & Zvetina, San Diego, Cal., for plaintiffs.
Donald A. Carr, Dept. of Justice, Washington, D. C., for U. S.
Wayne S. Braveman, Tuttle & Taylor, Inc., Los Angeles, Cal., for intervenor-defendants.
The case at bar concerns the statutory and constitutional validity of the federal observer program on U. S. tuna vessels which fish in association with porpoise. The issue is whether data gathered by these mandatory on-board observers may be used against the vessel and crew in civil, criminal and forfeiture proceedings. The material facts are not in dispute and the case comes before the Court on cross-motions for summary judgment.
A bit of background concerning tuna purse-seining and the Marine Mammal Protection Act is appropriate. Tuna, especially yellowfin, tend to swim in association with porpoise, which are marine mammals. Capitalizing on this known, but scientifically unexplained phenomenon, tuna purse-seiners often set their nets around schools of porpoise in order to encircle the tuna swimming beneath. In the process of pursing the net, some porpoise may become entrapped and be drowned or injured.
Over the years, the fishermen have developed techniques and gear designed to minimize porpoise mortality and injury, such as smaller mesh nets, escape panels, and a back-down maneuver which causes part of the net to submerge, allowing the porpoise to swim free. Since 1972, porpoise mortality has declined from approximately 300,000 to approximately 18,500 in 1979, based upon figures extrapolated from observed vessels.
In 1972, Congress enacted the Marine Mammal Protection Act, 16 U.S.C. § 1361, et seq., which imposed a moratorium on the taking of marine mammals, but excepted the commercial fishing industry during a two-year period of research and development. Thereafter, the incidental taking of marine mammals in connection with commercial fishing could be allowed by the Secretary of Commerce subject to regulations and permits. 16 U.S.C. §§ 1371, 1374. The Secretary has issued a comprehensive set of regulations, 50 C.F.R. § 216, et seq., which cover nearly all aspects of tuna fishing "on porpoise," from prohibition of setting on certain species of porpoise, to net and maneuvering requirements, to minutiae such as the condition of speedboats, scuba gear and face masks. The penalties provided by the Act for violation of these regulations are severe, ranging from civil penalties of $10,000.00 for each violation, to criminal penalties of one-year imprisonment and/or $20,000.00 fine, to forfeiture of the catch (which may have a value in excess of one million dollars). 16 U.S.C. §§ 1375, 1376.
The case centers about one of the regulations adopted by the Secretary of Commerce, 50 C.F.R. § 216.24(f), which in its present form (effective January 1, 1981) reads in pertinent part:
Emphasis added.
Under this regulation, the National Marine Fisheries Service ("NMFS"), a division of the National Oceanographic and Atmospheric Administration, stations federal observers, denominated "biological technicians," aboard tuna vessels for the duration of a fishing trip, which often lasts two to three months and ranges thousands of miles into the ocean. The observer berths with the crew and takes his meals with captain and crew in the ship's galley (at government expense). During all fishing operations, the observer positions himself on deck and methodically records in numerous log books and forms detailed information regarding porpoise stocks and species, and the compliance of the vessel with the regulations. As part of his duties under the Field Manual issued by NMFS, the observer questions captain and crew regarding their estimates of porpoise. This data is then turned over to the enforcement branch of NMFS, which issues notices of violations against the vessel and crew. Such notices based upon observer-gathered data have been issued and administrative proceedings instituted, commencing in August 1977 under predecessor regulations. Unless restrained, the Secretary indicates he will continue so to use the observer data.
Plaintiff tunaboat captains contend that the observer program as implemented by the regulation is in violation of the statute and of the Fourth Amendment of the Constitution. Defendants contend that it is a valid, and the only practical, method of enforcing compliance with the Act. The starting point for analysis is whether the stationing of the observer on the vessel constitutes a "search" within the meaning of the Fourth Amendment.
Recent decisions of the Ninth Circuit have made it clear that the mere boarding of a vessel, commercial or private, by government agents for any type of investigation or inspection is a search within the Fourth Amendment. This was the specific holding of United States v. Raub, 637 F.2d 1205 (9th Cir. 1980), which involved the boarding of a fishing vessel by an NMFS agent to check the owner's Indian identification card. Also, in United States v. Piner, 608 F.2d 358 (9th Cir. 1979), the boarding of a pleasure craft in San Francisco Bay for routine safety and document check was held to be a search. Since under the observer program there is boarding by government agents who have, as one of their express purposes, the gathering of information for use in civil, criminal or forfeiture proceedings against the vessel or crew, their entry and presence on board must be deemed a search.
Arguments advanced by Defendants and Intervenors that this is not a search under the "plain view," "open fields," or "public view" doctrines are inapposite. As the Supreme Court made clear in Coolidge v. New Hampshire, 403 U.S. 443, 464-473, 91 S.Ct. 2022, 2037-2042, 29 L.Ed.2d 564 (1971), "plain view" applies only where the initial intrusion is justified and the observation inadvertent or fortuitous. Here, the observation is not inadvertent, but specifically intended. The "open fields" doctrine regards technical trespasses or insignificant intrusions onto the open exterior areas of private property as "de minimis" and immaterial to the validity of observations made as a result of such intrusions. Here the intrusion is not insignificant or "abstract and theoretical," but substantial. "Public view" applies where law enforcement makes observations in the same fashion as members of the public. As the Supreme Court indicated in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S.Ct. 2319, 2326, 60 L.Ed.2d 920 (1979), the law enforcement officer must truly be positioned and act as a member of the public, and not assume prerogatives and vantage points not accorded to the public. Here, since members of the public are not permitted aboard tuna vessels at sea, the observer has a private vantage point carved out specially for observers by the regulation and not available to the public.
Thus, the various "view" doctrines are inapposite since the initial boarding of the vessel which gives the observer his continuous viewing platform is itself a search within the Fourth Amendment. The issue then is the authority for the search.
It is axiomatic that an administrator is a creature of statute and that his authority derives solely from the statute pursuant to which he acts. Soriano v. United States, 494 F.2d 681, 683 (9th Cir. 1974); Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 56 S.Ct. 397, 80 L.Ed. 528 (1936). We turn then to the statute to ascertain the Secretary's authority to adopt the search regulation.
Congress did, in enacting the Marine Mammal Protection Act, provide specifically for a type of observer program. In § 1381, the Congress established a two-year period of research and development of new fishing techniques and gear to minimize porpoise mortality and injury and an observer program for research related thereto. It is obvious from that section, however, that the sole function of the observers was research and development, and that they had no enforcement role. In any event, that express statutory authorization expired by its own terms on October 21, 1974, and Defendants do not, nor could they, seek to base the Secretary's authority on that section.
In § 1377 of the Act, entitled "Enforcement," Congress expressly conferred authority for searches pursuant to the Act and set the standard for such searches. That section empowered enforcement officers to:
"(2) with a warrant or other process, or without a warrant if he has reasonable cause to believe that a vessel or other conveyance subject to the jurisdiction of the United States or any person on board is in violation of any provision of this subchapter or the regulations issued thereunder, search such vessel, or conveyance and arrest such person." Emphasis added.
Thus, it is clear that Congress authorized warrantless...
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Balelo v. Baldrige
...ANDERSON, TANG, SCHROEDER, PREGERSON, ALARCON, FERGUSON, NELSON and CANBY, Circuit Judges. ALARCON, Circuit Judge: In Balelo v. Klutznick, 519 F.Supp. 573 (S.D.Cal.1981), plaintiffs-appellees, who are captains of tuna purse seiners (hereinafter the Captains), instituted this action against ......
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Joseph v. Masonite Corp.
...property as 'de minimis' and immaterial to the validity of observations made as a result of such intrusions." (Balelo v. Klutznick (S.D.Cal.1981) 519 F.Supp. 573, 576; and to the same effect, see United States v. Cain (7th Cir.1972) 454 F.2d 1285, 1287; United States v. Capps (9th Cir.1971)......