Hopson v. Kreps

• Decision Date: 14 July 1980
• Docket Number: No. 79-4151,79-4151
• Citation: 622 F.2d 1375
• Parties: , 10 Envtl. L. Rep. 20,720 Eben HOPSON, Sr., et al., Plaintiffs-Appellants, v. Juanita KREPS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1375

622 F.2d 1375

16 ERC 2062, 10 Envtl. L. Rep. 20,720

Eben HOPSON, Sr., et al., Plaintiffs-Appellants, v. Juanita KREPS et al., Defendants-Appellees.

No. 79-4151.

United States Court of Appeals, Ninth Circuit.

July 14, 1980.

Wickwire, Lewis, Goldmark, Dystel & Schorr, Seattle, Wash., on brief; Charles A. Goldmark, Seattle, Wash., for plaintiffs-appellants.

Bruce C. Rashkow, Dept. of Justice, Washington, D.C., on brief; Margaret Strand, U.S. Atty., Alaska, for defendants-appellees.

Appeal from the United States District Court for the Western District of Alaska.

Before WALLACE and FARRIS, Circuit Judges, and EAST, ^* District Judge.

WALLACE, Circuit Judge:

This case presents difficult questions of statutory interpretation, justiciability, and the scope of judicial review of administrative action in foreign affairs. Hopson brought this action against the United States, the Secretary of Commerce and other government personnel and agencies (government) to challenge the validity of Department of Commerce regulations adopted pursuant to the International Whaling Convention Act of 1949. 16 U.S.C. §§ 916-916l. The district court dismissed the action as presenting a non-justiciable political question. Hopson v. Kreps, 462 F.Supp. 1374 (D.Alaska 1979). Because we find that the district court had jurisdiction to consider Hopson's statutory claim, we reverse and remand.

I.

The 1946 International Whaling Convention (Convention), 62 Stat. 1716, was entered into for the purpose of strengthening efforts to conserve whale populations around the world. Since prior treaties could only be amended by formal protocol, and therefore did not lend themselves to establishment of seasonal quotas for the taking of whales, a major purpose of the Convention was the creation of an international commission with power to fix such quotas. See Hopson v. Kreps, supra, 462 F.Supp. at 1375. The Convention thus empowered an International Whaling Commission (Commission) to establish a detailed set of whaling regulations and quotas, called a Schedule, which may be amended by a vote of three-fourths of the members of the Commission. The Commission consists of a representative from each "Contracting Nation." Although the Commission has authority to amend the Schedule of regulations pursuant to Article V of the Convention, it has no authority to amend the Convention itself.

The subject of this controversy, the bowhead whale, is one of the most endangered whale species. Since 1946, the bowhead has been completely protected under the Schedule, except for an exemption for native subsistence whaling. This controversy began in 1977 when the Commission voted 17-0, the United States abstaining, to eliminate the native subsistence exemption. The policy dilemma for the United States stems from the fact that native hunting for the bowhead whale is considered to be an integral part of Eskimo life and culture. Indeed, the bowhead whale is viewed as vital to Eskimo nutrition, apart from its contribution to traditional living patterns. Largely for these reasons, the government prepared an extensive environmental impact statement to determine whether the United States should file an objection to the Schedule amendment.

Pursuant to Article V of the Convention, if a Contracting Government objects to an amendment to the Schedule within 90 days, the amendment does not apply to the objecting nation. Although the United States decided not to object to the native subsistence whaling amendment, the government made it clear that it considered a total ban on subsistence whaling unacceptable. Since that time, the American delegation to the Commission has succeeded in obtaining a limited quota for the taking of bowhead whales by Alaskan natives.

Hopson brought this action on behalf of Alaskan Eskimos, claiming that the Commission exceeded its jurisdiction under the Convention when it eliminated the exemption for subsistence whaling. Jurisdictional language in Article I of the Convention states that the Convention applies to "factory ships, land stations, and whale catchers under the jurisdiction of the Contracting Governments . . . ." 62 Stat. at 1717. Article II defines "whale catcher" as "a ship used for the purpose of hunting, taking, towing, holding on to, or scouting for whales." Id. Hopson contends that this definition was intended to apply only to commercial whaling vessels and not to the small boats used by Eskimos.

More important for our purposes, Hopson contends that since Congress enacted the Whaling Convention Act of 1949 solely to implement the Convention, the Commerce Department was not authorized to adopt Commission regulations that exceed the scope of the Commission's jurisdiction. ¹ The district court refused to address Hopson's statutory argument, however, and accepted instead the government's contention that the interpretation of the Convention "is so intertwined with foreign policy considerations that (a) court has no jurisdiction to consider the validity of the (Commerce Department) regulations that implement the Commission's Schedule." 462 F.Supp. at 1378. In reaching this conclusion, the court relied heavily on affidavits submitted by the government tending to show that the nation's efforts to develop international conservation would be damaged by a ruling adverse to the government. The government also contends before us that the decision of the executive not to object to the amendment of the Schedule constituted an exercise of unreviewable administrative discretion. We will consider first the district court's conclusion that it lacked jurisdiction to determine the validity of the challenged regulations, after which we will consider the reviewability of the administrative action.

II.

The district court's decision was rendered prior to our decision in United States v. Decker, 600 F.2d 733 (9th Cir.), cert. denied, 444 U.S. 855, 100 S.Ct. 113, 62 L.Ed.2d 73 (1979), which raised a similar issue. In Decker, criminal defendants appealed their convictions pursuant to a statute prohibiting violation of the treaty regulations of an international commission, contending that the convictions were outside statutory language limiting the scope of criminal liability. Specifically, the defendants contended that the Secretary of State lacked authority pursuant to a 1937 treaty to accept partially the regulations of the international commission, and that the Secretary's action thus constituted a rejection of the regulations. Id. at 738. We held that the issue whether the regulations were validly accepted, and therefore applicable under the statute, was not rendered political merely because deciding it would require the interpretation of a treaty or have potential impact on the nation's external relations. Since Decker involved an appeal from a criminal conviction for violation of the statute, we also stated that we would be particularly reluctant to withhold review where the validity of the regulations under the statute went to the validity of the criminal conviction we were charged to review. Id.

The government has failed to distinguish this case from Decker. The government urges that the political question doctrine has prudential as well as Article III dimensions, and contends that its application involves a weighing of relevant considerations on a case-by-case basis. It asks us to sustain the decision of the district court on the basis of a finding that the court sensitively applied the well-known criteria enunciated in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), to the particular facts before us. ² We need not resolve the longstanding debate as to the nature and proper scope of the political question doctrine, ³ however, to conclude that we are bound by our specific holding in Decker rather than the general formulation of Baker.

The analysis in Baker makes it clear that the criteria enunciated there generally do not apply to claims that the executive has exceeded specific limitations on delegated authority. Id. at 217, 82 S.Ct. at 710. ⁴ Moreover, in analyzing the Supreme Court's foreign affairs cases, Baker stated that the Court's decisions had reflected

a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.

Id. at 211-12, 82 S.Ct. at 707. The government misconstrues the content of this statement when it asserts that we should defer to the government because of the history of the executive branch's management of the bowhead whale issue. The "particular question posed" here is whether the Commerce Department exceeded limits on its statutory authority in promulgating these regulations. Questions of statutory authority are clearly susceptible of judicial handling and involve the classic judicial function of construing statutes to determine whether agencies have acted outside their jurisdiction. See K. Davis, Administrative Law § 28.21 (Supp.1970), at 993-94. Similarly, to the extent that Hopson's claim raises issues that go to the statutory authority of the Commerce Department, those claims cannot be subjected to the government's characterization that they represent nothing more than an attack on the nation's international conservation policy.

Apart from these consideration, it is clear that in Decker we were cognizant of the Baker criteria when we determined that the issue there was justiciable. 600 F.2d at 737. We cannot say that similar issues are rendered non-justiciable merely by independently applying the Baker criteria and finding them applicable on these facts.

The government next contends that this case is governed by our decision in Jensen v. National Marine Fisheries Service, 512 F.2d 1189 (9th Cir. 1975), rather than Decker. Our disagreement with this contention should...