Federation of Japan Salmon Fisheries v. Baldridge, Civ. A. No. 87-1351

• Decision Date: 15 June 1987
• Docket Number: 87-1440 and 87-1472.,Civ. A. No. 87-1351
• Citation: 679 F. Supp. 37
• Parties: FEDERATION OF JAPAN SALMON FISHERIES COOPERATIVE ASSOCIATION, Petitioners, v. Malcolm BALDRIDGE, et al., Respondents. KOKECHIK FISHERMEN'S ASSOCIATION, et al., Petitioners, v. Malcolm BALDRIDGE, et al., Respondents. CENTER FOR ENVIRONMENTAL EDUCATION, et al., Petitioners, v. Malcolm BALDRIDGE, et al., Respondents.
• Court: U.S. District Court — District of Columbia

679 F. Supp. 37

FEDERATION OF JAPAN SALMON FISHERIES COOPERATIVE ASSOCIATION, Petitioners, v. Malcolm BALDRIDGE, et al., Respondents.

KOKECHIK FISHERMEN'S ASSOCIATION, et al., Petitioners, v. Malcolm BALDRIDGE, et al., Respondents.

CENTER FOR ENVIRONMENTAL EDUCATION, et al., Petitioners, v. Malcolm BALDRIDGE, et al., Respondents.

Civ. A. Nos. 87-1351, 87-1440 and 87-1472.

United States District Court, District of Columbia.

June 15, 1987.

John A. Hodges, Frank Winston, Wiley, Rein & Fielding, Washington, D.C., for Federation of Japan Salmon Fisheries Coop. Ass'n.

Paul Alexander, Alexander & Karshmer, Washington, D.C., Donald C. Mitchell, Anchorage, Alaska, for Kokechik Fishermen's Ass'n.

Howard Fox, Robert G. Dreher, Sierra Club Legal Defense Fund, Inc., Washington, D.C., Laurie J. Adams, Sierra Club Legal Defense Fund, Inc., Juneau, Alaska, for Center for Environmental Educ.

Secretary of Commerce, et al. Charles R. Shockey, Wildlife & Marine Resources Section, Land & Natural Resources Div., Dept. of Justice, Washington, D.C.

MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, District Judge.

These consolidated cases involve the validity of a May 14, 1987, final decision of respondent Secretary of Commerce ("Secretary"). That decision approved the application of the Federation of Japan Salmon Fisheries Cooperative Association ("the Federation" or "the Japanese Federation") for an incidental take permit under section 1374 of the Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1406 (1972) ("MMPA"), and adopted regulations pursuant to section 1373 of the MMPA which authorize Federation members to take a total of 6,039 Dall's porpoise within the United States' 200 mile fishery conservation zone during the next three years. 50 C.F.R. 216.24(d)(5)(vii).

Presently before the Court are the motions of petitioners in each of the three cases for a preliminary injunction. Upon consideration of the supporting and opposing memoranda, oral argument of counsel, and the record submitted to the court to date, the motions of the petitioners in Kokechik Fishermen's Association, et al. and Center for Environmental Education, et al., shall be granted. The motion of the Japanese Federation shall be denied as moot.

Historical Background

Kokechik alleges that Japanese fishing vessels began fishing for salmon with gillnets in Alaskan waters as early as 1904. By 1937, prompted by complaints from fishermen in the United States that Japanese gillnets were destroying Alaskan salmon stocks, the United States Senate passed a resolution that demanded that Japanese vessels stop salmon fishing off the coast of western Alaska. See 81 Cong. Rec. 2670, March 24, 1937. Although the Japanese gillnet salmon fishery in the Bering Sea and North Pacific Ocean was suspended during the Second World War, at the urging of Senator Warren Magnuson, President Truman in 1945 executed a presidential proclamation authorizing the U.S. Government to establish conservation zones in the areas of the high seas contiguous to the coasts of the U.S. where fishing activities had been or in the future might be developed and maintained on a substantial scale. 59 Stat. 885 (Sept. 28, 1945). An explicit purpose of the proclamation was to "protect coastal fishery resources from destructive exploitation...." Id. The Truman proclamation was never implemented, however.

Between 1937 and 1952 Kokechik alleges that Japanese vessels fished extensively for salmon, including salmon of United States origin, in the Bering Sea and North Pacific Ocean and entrapped and drowned significant numbers of various marine mammals in their gillnets. See Kokechik Petition for Review at 8-9. The Federation denies that significant numbers of marine mammals or other animals were taken by the Japanese gillnet fishery prior to 1952 and denies that significant numbers of marine mammals or other animals were taken by the Japanese gillnet fishery between 1952 and 1976. See Answer of Federation at 3.

The International Convention for the High Seas Fisheries of the North Pacific Ocean, 4 U.S.T. 380, T.I.A.S. No. 2786 ("INPFC"), was signed by Canada, Japan, and the United States in 1952 and entered into force in 1953. The chief motivation behind the INPFC was the desire of the U.S. and Canada to minimize the interception of North American origin salmon by Japan's salmon fishery in the North Pacific and Bering Sea. This was accomplished by the initiation of the "abstention principle" under which Japan agreed to abstain from fishing for salmon east of longitude 175° West in the North Pacific Ocean and Bering Sea.

The Magnuson Fishery Conservation and Management Act of 1976 ("Magnuson Act") established a 200 mile fishery conservation zone ("FCZ" or now known as the Exclusive Economic Zone "EEZ") surrounding the coast of the U.S. Pursuant to the Magnuson Act, no foreign vessel, including vessels operated by Federation members, may fish within the zone for fish stocks that are fully utilized by U.S. fishermen. This Act directed the Secretary of State, in cooperation with the Secretary of Commerce, to initiate the renegotiation of any treaty pertaining to fishing within the FCZ and for certain other fishery resources beyond the FCZ, which were inconsistent with its provisions. As the 1952 INPFC was inconsistent in several respects with the Magnuson Act, it was determined necessary to renegotiate or terminate the INPFC.

On February 10, 1977, the U.S. gave notice of its intention to terminate the INPFC in one year unless it was renegotiated in that period. An agreement on a Protocol to the INPFC was signed by Canada, Japan, and the U.S. on April 25, 1978. This Protocol moved the abstention line to 175° East longitude, with the exception of a portion of the north central Bering Sea outside the U.S. FCZ. Additional areas where North American salmon and marine mammals are protected from fishing by Japan under the INPFC include approximately 775,000 square miles outside the U.S. FCZ. The Japanese mothership fleet, in return, is allowed to fish for salmon of primarily Asian origin in 70,000 square miles inside the U.S. FCZ between June 10 and July 31 of each year.

As part of the newly negotiated INPFC, all parties agreed to establish a program of coordinated scientific research as well as to establish procedures to facilitate observation of the mammal stock and fishing operations. Japan and the U.S. further agreed to a research program designed to reduce or eliminate the incidental take of marine mammals and assess the distribution, abundance, and status of Dall's porpoise taken incidentally in the high seas salmon fishery. The study included the biology, ecology, reproduction, food habits, and age structure of the mammals.

At the time the INPFC was renegotiated, the U.S. was aware that if Federation members were allowed to set their gillnets within the U.S. conservation zone, Dall's porpoise, fur seals, harbor porpoise, northern right whale dolphin, Pacific white-sided dolphin, common dolphin, sea lions, and other marine mammals would be entangled or drown in the nets set by the Japanese. For that reason, in 1978, the same year the Senate ratified the Protocol that amended the INPFC, the Congress amended the North Pacific Fisheries Act.

The North Pacific Fisheries Act of 1954, 16 U.S.C. § 1021 et seq. ("NPFA"), implemented the INPFC in the U.S. It was amended in 1978 to reflect the new Protocol and its Annex concerning the marine mammal research. At that time, in accordance with the North Pacific Fisheries Act and the INPFC, the Japanese fishery was exempted from the incidental take permit requirements of the MMPA for a period of three years, during which time the U.S. and Japan agreed to study the effect of the salmon fishery on marine mammal populations and to work to reduce or eliminate incidental takings. Section 14 of the NPFA stated: "After June 9, 1981, the taking of marine mammals incidental to fishing operations by Japanese vessels within the fishery conservation zone shall be regulated pursuant to the Marine Mammal Protection Act of 1972...." As the statutory waiver granted in the North Pacific Fisheries Act under which the Japanese operated was to expire in 1981, the Federation submitted an application for an incidental take permit under the Marine Mammal Protection Act on January 19, 1981. This application requested a general permit for three years (1981 to 1983).

The Marine Mammal Protection Act

Although the U.S. has allowed the Federation to enter the U.S. FCZ and set gillnets for salmon, its ability to do so is not unconditional. The Federation and the Japanese government acknowledge that Federation members may not fish in the U.S. FCZ unless, while in the zone, they comply with the laws of the U.S. The MMPA is one of the laws Federation members must observe while fishing for salmon within the U.S. fishery conservation zone. It is that law which is at issue in this case.

Congress expressly found and stated in the MMPA that "certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities.... Such species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population...." MMPA § 1361.¹

Section 1371 of the MMPA imposes a moratorium on the "take" of all marine mammals in water subject to the jurisdiction of the U.S., including the Bering Sea and North Pacific Ocean. The term "take" is defined by the MMPA to mean "harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." MMPA § 1362(12). A moratorium is defined as "a complete cessation of the taking of marine mammals...." MMPA § 1362(7). Defendant Secretary of Commerce has interpreted the term "...