American Cetacean Soc. v. Baldrige, s. 85-5251
| Decision Date | 06 August 1985 |
| Docket Number | 85-5252,Nos. 85-5251,s. 85-5251 |
| Citation | 768 F.2d 426,247 U.S.App.D.C. 309 |
| Parties | , 15 Envtl. L. Rep. 20,877 AMERICAN CETACEAN SOCIETY, et al. v. Malcolm BALDRIGE, Secretary of Commerce, et al., Appellants Japan Whaling Association, et al. AMERICAN CETACEAN SOCIETY, et al. v. Malcolm BALDRIGE, Secretary of Commerce, et al. Japan Whaling Association, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of columbia.
Dianne H. Kelly, Atty., Dept. of Justice, Washington, D.C., with whom F. Henry Habicht, II, Asst. Atty. Gen., Donald A. Carr and Martin W. Matzen, Attys., Dept. of Justice, Washington, D.C., and Robert J. McManus, Atty., Dept. of Commerce, Washington, D.C., were on the brief, for the federal appellants.
Scott C. Whitney, Washington, D.C., with whom Steven R. Perles, Washington, D.C., was on the brief, for appellants Japan Fisheries Association and Japan Whaling Association.
James A. Beat, Washington, D.C., with whom William D. Rogers and John F. Libby, Washington, D.C., were on the brief, for appellees.
Before WRIGHT and TAMM, Circuit Judges, and OBERDORFER, * District Judge.
Opinion for the court filed by Circuit Judge WRIGHT.
In this case we review a decision of the District Court that the Secretary of Commerce must, under the Pelly and Packwood-Magnuson Amendments, see 22 U.S.C. Sec. 1978 (1982); 16 U.S.C. Sec. 1821(e)(2) (1982), certify Japan as "diminish[ing] the effectiveness" of the International Convention for the Regulation of Whaling (ICRW), entered into force November 10, 1948, 62 STAT. 1716, T.I.A.S. 1849, reproduced in Joint Appendix (JA) at 47-57, because Japanese nationals are undisputedly harvesting whales in excess of the harvest quotas promulgated under that Convention.
We agree with the District Court's ultimate conclusion that certification in this case is mandatory, though we reach it for slightly different reasons. Thus we hold that, although in some situations the Secretary has discretion whether to certify, the Secretary is required by law to certify a foreign country whose nationals are harvesting whales in excess of ICRW quotas. Consequently, we affirm the judgment of the District Court.
The ICRW was formed in 1946 to regulate whaling by "establish[ing] a system of international regulation for the whale fisheries to ensure proper and effective conservation and development of whale stocks." Preamble, JA 48. Toward this end, a Schedule of specific requirements and prohibitions regarding whaling practices was promulgated; this Schedule was adopted as part of the Convention. See Article I, JA 48; Schedule, JA 52-56.
In addition, the signatory nations agreed to establish an International Whaling Commission (IWC). See Article III, JA 48. The ICRW authorized the IWC to study whales, whale stocks, and whaling practices. See Article IV, JA 49. The IWC was also authorized to amend the ICRW Schedule
by adopting regulations with respect to the conservation and utilization of whale resources, fixing (a) protected and unprotected species; (b) open and closed seasons; (c) open and closed waters, including the designation of sanctuary areas; (d) size limits for each species; (e) time, methods, and intensity of whaling (including the maximum catch of whales to be taken in any one season); (f) types and specifications of gear and apparatus and appliances which may be used; (g) methods of measurement; and (h) catch returns and other statistical and biological records.
Article V, JA 49-50.
With respect to such amendments, the ICRW provided for an objection procedure. Under this procedure, any of the member nations may file an objection to a Schedule amendment within 90 days of being notified of the amendment. If such an objection is filed in a timely manner, the objecting nation is not bound by the amendment (although the non-objecting nations are bound). Once an objection is withdrawn, however, it cannot be refiled. See Article V, JA 50.
Under the ICRW, the IWC itself has no enforcement powers against nonmembers or against members who, by objecting, choose not to be bound by a given IWC determination. This lack of enforcement ability is typical of international fishery and wildlife conservation programs. To provide enforcement leverage for this and other such programs, Congress in 1971 enacted the Pelly Amendment. See 22 U.S.C. Sec. 1978. Although this Amendment focused on the depletion of North Atlantic salmon stocks by Denmark in excess of the quotas for fishing those stocks set under the International Convention for the Northwest Atlantic Fisheries (ICNAF), it clearly covered whaling as well. See H.R.Rep. No. 92-468, 92d Cong., 1st Sess. 4-6 (1971) (hereinafter Pelly House Report) 117 Cong.Rec. 34752 (1971) (statement of Rep. Pelly).
The Pelly Amendment provides that "[w]hen the Secretary of Commerce determines that nationals of a foreign country, directly or indirectly, are conducting fishing operations in a manner or under circumstances which diminish the effectiveness of an international fishery conservation program, the Secretary of Commerce shall certify such fact to the President." 22 U.S.C. Sec. 1978(a)(1). The term "international fishery conservation program" is defined as "any ban, restriction, regulation, or other measure in effect pursuant to a multilateral agreement which is in force with respect to the United States, the purpose of which is to conserve or protect the living resources of the sea." Id. Sec. 1978(h)(3). The phrase "diminish the effectiveness" is not defined in the statute.
The legislative history of this statutory provision clearly indicates that it authorizes certification of activities of nonmembers or members acting under a valid objection to an IWC Schedule amendment. See Pelly House Report at 5, 8-10 (). 1 The Amendment further provides that
[u]pon receipt of any certification made under [22 U.S.C. Sec. 1978(a)(1) ], the President may direct the Secretary of the Treasury to prohibit the bringing or the importation into the United States of fish products * * * from the offending country for such duration as the President determines appropriate and to the extent that such prohibition is sanctioned by the General Agreement on Tariffs and Trade.
22 U.S.C. Sec. 1978(a)(4). Thus the President is authorized to place a foreign country in the position of having all its fish product exports to the United States prohibited for as long as the President deems necessary if the country's nationals "diminish the effectiveness" of an international fishery conservation program--whether or not the fishing is legal under the terms of the Convention by virtue of the foreign country having objected to the relevant provision or being a nonmember nation. 2 In addition, the President is required to notify Congress of any actions taken pursuant to certification within 60 days of that certification; if the President does not impose the sanctions authorized, he must also give reasons to Congress for his failure to do so. See 22 U.S.C. Sec. 1978(b). 3 After passage of the Pelly Amendment, several certifications occurred, although no sanctions were ever imposed by the President against the offending countries. Instead, the certifications were used to extract conservation agreements from the offending nations. Further, the certifications that were made were not accomplished in a notably expeditious fashion. See, e.g., 125 Cong.Rec. 22084 (1979) (statement of Rep. Oberstar). In response to the non-imposition of the Pelly Amendment's discretionary sanctions and to the perceived dilatory certification decisionmaking on the part of the Secretary of Commerce, Congress in 1979 passed the Packwood-Magnuson Amendment. See 16 U.S.C. Sec. 1821(e)(2).
The Packwood-Magnuson Amendment provides that if the Secretary of Commerce certifies that a country is diminishing the effectiveness of the IRCW (this provision applies only to the ICRW), the Secretary of State must impose a sanction against the offending country. 4 The sanction is an immediate reduction, by not less than 50 percent, of any allocation for fishing in United States territorial waters that is in effect for that country on the date of certification or that would otherwise be made within the year following certification. 16 U.S.C. Sec. 1821(e)(2)(B). 5 If the certification is terminated within one year by virtue of a determination by the Secretary of Commerce that the justification for the certification has ceased, the prior allocation must be reinstated. Otherwise, the reduced allocation remains in effect until such time as the certification is terminated. The Packwood-Magnuson Amendment, therefore, did not alter the Pelly Amendment's provision regarding certification of foreign countries; it simply provided for a mandatory sanction where certification occurs in the whaling context. 6
The Packwood-Magnuson Amendment also included two provisions amending the Pelly Amendment. The first one requires prompt action by the Secretary with respect to certification decisions. This provision states that
the Secretary of Commerce * * * shall--
(A) periodically monitor the activities of foreign nationals that may affect the international programs referred to in paragraphs (1) and (2);
(B) promptly investigate any activity by foreign nationals that, in the opinion of the Secretary, may be cause for certification under paragraphs (1) or (2); and
(C) promptly conclude; and reach a decision with respect to; any investigation commenced under...
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