724 F.2d 753 (9th Cir. 1984), 81-5806, Balelo v. Baldrige

Docket Nº:81-5806, 81-5807 and 82-5433.
Citation:724 F.2d 753
Party Name:Envtl. 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-Appellees, v. Malcolm BALDRIGE, Secretary of Commerce of the United States, Richard A. Frank, Administrator, National Oceanic and Atmospher
Case Date:January 24, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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724 F.2d 753 (9th Cir. 1984)


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-Appellees,


Malcolm BALDRIGE, Secretary of Commerce of the United

States, Richard A. Frank, Administrator, National Oceanic

and Atmospheric Administration and Terry Leitzell, Assistant

Administrator for Fisheries, National Marine Fisheries

Service, Defendants-Appellants,

Environmental Defense Fund, Inc., et al.,

Intervenors-Defendants-Appellants. [*]]

UNITED STATES of America, Plaintiff,


$50,178.80, THE MONETARY VALUE OF 57 TONS OF TUNA, Defendant,

Gladiator Fishing, Inc., Claimant. [**]

Nos. 81-5806, 81-5807 and 82-5433.

Argued and Submitted En Banc

United States Court of Appeals, Ninth Circuit

January 24, 1984

Sept. 15, 1983.

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Raymond F. Zvetina, Haskins, Nugent, Newham, Kane & Zvetina, San Diego, Cal., Shirli Fabbri Weiss, Gray, Cary, Ames & Frye, La Jolla, Cal., for plaintiffs-appellees in Nos. 81-5806 and 81-5807; Peter Osinoff, Los Angeles, Cal., for plaintiffs-appellees.

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Wayne S. Braveman, Tuttle & Taylor, Inc., Los Angeles, Cal., Donald A. Carr, Dept. of Justice, Washington, D.C., for defendants-appellants in Nos. 81-5806 and 81-5807; William N. Kammer, Gray, Cary, Ames, & Frye, San Diego, Cal., for defendants-appellants in No. 82-5433.

Appeals from the United States District Courts for the Southern and Central Districts of California.


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 defendants-appellants (hereinafter the Secretary) seeking declaratory and injunctive relief. 1 The district court granted a declaratory judgment invalidating subsection (f) of regulation 50 C.F.R. Sec. 216.24 (1981) promulgated by the Secretary of Commerce 2 pursuant to the Marine Mammal Protection Act (hereinafter MMPA), 16 U.S.C. Sec. 1371.

Under the regulation, the Captains are permitted to take porpoise during commercial fishing operations only if they comply with certain conditions. 3 They must allow government observers to board and accompany the vessel on regular fishing trips "for the purpose of research or observing operations." 50 C.F.R. 216.24(f). The regulation further authorizes the collection of data which may be used in MMPA enforcement proceedings. Id. The district court ruled that the regulation was unconstitutional only insofar as it permitted the use of observer collected data in MMPA enforcement proceedings.

In United States v. $50,178.80, the Monetary Value of 57 Tons of Tuna and Gladiator Fishing, Inc., Cv. No. 79-4466-LEW (MX) (C.D.Cal. April 21, 1982), a civil forfeiture proceeding, the district court denied a motion to suppress evidence of observer collected data.

We have taken these matters en banc to consider whether the regulation is valid under the MMPA, and if so, whether it violates the fourth amendment. For the reasons set forth below, we have concluded that: (1) the regulation was authorized under the broad rule-making power delegated by Congress to the Secretary; (2) the regulation is consistent with the policies and objectives of the MMPA; and (3) the regulation falls within the pervasively regulated industry exception to the warrant requirement of the fourth amendment.


The Captains utilize a method of fishing for yellow-fin tuna which results in the incidental taking 4 of certain species of porpoise.

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Porpoise tend to swim in association with yellow-fin tuna in the eastern tropical Pacific. The porpoise is larger and more active on the ocean's surface. Thus, the Captains can locate yellow-fin tuna by spotting porpoise. Purse seine nets are then set around schools of porpoises. The tuna swimming beneath them are encircled when the net is closed or "pursed" around them. During this operation, significant numbers of porpoise are injured or drowned. Their carcasses are discarded into the sea. In the two years preceding the enactment of the MMPA in 1972, the incidental taking resulted in more than 600,000 porpoise mortalities. Committee for Humane Legislation Inc. v. Richardson, 414 F.Supp. 297, 300 (D.D.C.), aff'd, 540 F.2d 1141 (D.C.Cir.1976).

Congress' overriding purpose in enacting the MMPA was the protection of marine mammals. Congress declared the immediate goal of the MMPA to be "that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate." 16 U.S.C. Sec. 1371(a)(2) (1976-1982). To accomplish this goal, Congress imposed a moratorium on the taking and importing of marine mammals. 16 U.S.C. Sec. 1371(a) (1976-1982). A two-year exemption from the moratorium for the taking of marine mammals incidental to commercial fishing operations was allowed. 16 U.S.C. Sec. 1371(a)(2) (1976), amended by 16 U.S.C. Sec. 1371(a)(2) (1982). The legislative history indicates that the exemption was provided "for the refinement of these fishing gear modifications" which industry representatives proffered as a solution to the porpoise mortality problem. Committee for Humane Legislation, 414 F.Supp. at 301. 5 In addition, the Act directed the "immediate" undertaking of a research and development program to devise improved fishing methods and gear so as to reduce the incidental taking of marine mammals in connection with commercial fishing. 16 U.S.C. Sec. 1381(a) (1976).

Although the commercial fishing industry was exempted for two years from the moratorium, the incidental taking of mammals during this time was conditioned on industry compliance with section 1381. 6 See,

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e.g., 16 U.S.C. Sec. 1371(a)(2) (1976), amended by 16 U.S.C. Sec. 1371(a)(2) (1982). Subsection (d) of section 1381 requires the industry to allow agents of the Secretary "to board and to accompany any commercial fishing vessel ... on a regular fishing trip for the purpose of conducting research or observing operations in regard to the development of improved fishing methods and gear as authorized by this section." 16 U.S.C. Sec. 1381(d) (1976-1982). Since expiration of this two-year exemption in 1974, the taking of marine mammals incidental to commercial fishing must be pursuant to a permit issued by the Secretary, 16 U.S.C. Sec. 1371(a)(2), "subject to regulations prescribed by the Secretary in accordance with section 1373." 16 U.S.C. Sec. 1371(a)(2) (1976-1982).

Section 1373 requires the Secretary to consider, in promulgating the regulations, the "existing and future levels of marine mammal species and population stocks," 16 U.S.C. Sec. 1373(b)(1) (1976-1982), and the "marine ecosystem and related environmental considerations," 16 U.S.C. Sec. 1373(b)(3) (1976-1982). The regulations may also restrict the taking of porpoise by species, number, age, sex, or other factors. 16 U.S.C. Sec. 1373(c) (1976-1982). In addition to the rule-making authority conferred upon the Secretary, 16 U.S.C. Sec. 1373, the MMPA provides for the imposition of civil and criminal penalties for violations of the provisions of the Act or the regulations or permits issued thereunder. 16 U.S.C. Sec. 1375(a) (1982).

In 1974, the Secretary promulgated a regulation, 50 C.F.R. Sec. 216.24(f) (1974), in language virtually identical to that set forth in section 1381, 7 the statutory observer program, that required the placement of observers on vessels.

Pursuant to the powers granted under the MMPA, the Secretary promulgated the regulation at issue here. The challenged regulation, effective January 1, 1981, requires as a condition of engaging in fishing operations that vessel owners:

(1) ... [S]hall, upon the proper notification by the [NMFS], allow an observer duly authorized by the secretary to accompany the vessel on any or all regular fishing trips for the purpose of conducting research and observing operations, including collecting information which may be used in civil or criminal penalty proceedings, forfeiture actions, or permit or certificate sanctions.

* * *

* * *

(4) The Secretary shall provide for the payment of all reasonable costs directly related to the quartering and maintaining of such observers on board such vessels. A vessel certificate holder who has been notified that the vessel is required to

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carry an observer, via certified letter from the National Marine Fisheries Service, shall notify the office from which the letter was received at least five days in advance of the fishing voyage to facilitate observer placement. A vessel certificate holder who has failed to comply with the provisions of this section may not engage in fishing operations for which a general permit is required.

50 C.F.R. Sec. 216.24(f) (1981) (emphasis added). 8

The Captains appear to have no objection to the observers' scientific role on board ship. Their objection is directed solely at those provisions of the 1981 regulation which authorize the use of observer collected data in enforcement proceedings. In the Captain's opening brief we are told that: "The District Court's injunction properly stripped the observer program of its unauthorized and impermissible search function and restored it to its pristine role of pure scientific fact-gathering." Appellees' opening brief at 9 (emphasis added).


The first issue we must address...

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