Humane Soc. of US v. Brown

• Decision Date: 18 August 1995
• Docket Number: Slip Op. 95-148. Court No. 95-05-00631.
• Citation: 901 F. Supp. 338,19 CIT 1104
• Parties: The HUMANE SOCIETY OF the UNITED STATES, Humane Society International, Defenders of Wildlife, Royal Society for the Prevention of Cruelty to Animals, Whale and Dolphin Conservation Society, and Earth Island Institute, Plaintiffs, v. Ron BROWN, Secretary of Commerce, and Warren Christopher, Secretary of State, Defendants.
• Court: U.S. Court of International Trade

901 F. Supp. 338

19 CIT 1104

The HUMANE SOCIETY OF the UNITED STATES, Humane Society International, Defenders of Wildlife, Royal Society for the Prevention of Cruelty to Animals, Whale and Dolphin Conservation Society, and Earth Island Institute, Plaintiffs, v. Ron BROWN, Secretary of Commerce, and Warren Christopher, Secretary of State, Defendants.

Slip Op. 95-148. Court No. 95-05-00631.

United States Court of International Trade.

August 18, 1995.

COPYRIGHT MATERIAL OMITTED

Sierra Club Legal Defense Fund (Patti A. Goldman) for plaintiffs.

Frank W. Hunger, Assistant Attorney General; Lois J. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division (Jeffrey M. Telep) and Environment & Natural Resources Division (James C. Kilbourne, Christiana P. Perry and Mark A. Brown), U.S. Department of Justice; and Office of the Legal Advisor, U.S. Department of State (David Balton) and Office of General Counsel, National Oceanic and Atmospheric Administration (Margaret F. Hayes), of counsel, for defendants.

OPINION & ORDER

AQUILINO, Judge:

Alleging continuing large-scale driftnet fishing in the Mediterranean Sea by fishermen from Italy in defiance of international, European and American law, the above-named plaintiffs come to this Court of International Trade with a complaint styled as one for declaratory and injunctive relief and accompanied by voluminous papers entitled Motion for a Preliminary Injunction. The defendants oppose that application for immediate relief and have interposed motions of their own, the first to dismiss the complaint and the others for relief from discovery already requested by the plaintiffs.

A hearing was held in open court on August 1, 1995 on the respective motions.

I

For the purposes of a motion to dismiss, the material allegations of a complaint are taken as admitted and are to be liberally construed in favor of the plaintiff(s). E.g., Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 reh'g denied, 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969), and cases cited therein.

A

With this rule in mind, the complaint herein alleges, among other things, that plaintiff The Humane Society of the United States ("HSUS") is a national membership organization with its principal office in Washington, D.C. and regional offices throughout the country. It

promotes the protection of animals, including marine species and cetaceans, in particular. For more than 23 years, HSUS has actively worked to protect cetaceans, including by seeking to stop destructive fishing practices like large-scale driftnetting, which pose a grave threat to marine mammals, sea turtles, sea birds, and non-target fish species. HSUS brings this action on its own behalf and on behalf of its more than 2 million members and supporters, more than 300 of whom reside in the European Union. HSUS members engage in and obtain great benefit from watching wildlife, including whales and dolphins and other marine life. HSUS members are harmed by large-scale driftnet fishing because it kills marine mammals, sea turtles, and sea birds and thereby reduces HSUS members' opportunity to view wildlife, particularly depleted and elusive species, such as the sperm whale.

Complaint para. 4. The complaint is possessed of similar representations as to the other named plaintiffs: For example, Humane Society International and its affiliate in Europe "are working to protect cetaceans and other marine life from destructive fishing practices like large-scale driftnetting." Id., para. 5. There are 100,000 Defenders of Wildlife members throughout the United States and the world who "are harmed by large-scale driftnet fishing because it kills marine mammals, sea turtles, and sea birds and thereby reduces ... their opportunity to view wildlife." Id., para. 6. The Royal Society for the Prevention of Cruelty to Animals was established in 1824 in the United Kingdom to "prevent or suppress cruelty to animals." Its

22,000 members and 600,000 supporters throughout the European Union (including Italy) and the rest of the world ... enjoy watching marine wildlife including in and around the Mediterranean Sea and throughout the world. RSPCA members are harmed by the diminishing numbers of marine wildlife in and around the Mediterranean Sea as a result of large-scale driftnet fishing in the area because it reduces their opportunity to view such wildlife.

Id., para. 7. Supporters of the Whale and Dolphin Conservation Society, which is also headquartered in England, "are harmed by the diminishing numbers of dolphins and whales in and around the Mediterranean Sea as a result of large-scale driftnet fishing in the area." Id., para. 8. A similar claim is made on behalf of Earth Island Institute and some 30,000 members. See id., para. 9.

The defendants are being sued in their official capacities as U.S. Secretary of Commerce and Secretary of State, respectively. Each is averred to have responsibilities under the High Seas Driftnet Fisheries Enforcement Act, Pub.L. No. 102-582, 106 Stat. 4900 (Nov. 2, 1992).

B

That statute describes "large-scale driftnet fishing", in general, as

a method of fishing in which a gillnet composed of a panel or panels of webbing, or a series of such gillnets, with a total length of two and one-half kilometers or more is placed in the water and allowed to drift with the currents and winds for the purpose of entangling fish in the webbing.

16 U.S.C. § 1826c(2)(A). Paragraphs 12-15 and 17 of the complaint add that the panels consist of

non-degradable plastic webbing. Driftnets are sometimes as long as 30 kilometers. Driftnet fishing involves the suspension of driftnets vertically in the water with floats attached to the top of the panel and weights attached to the bottom.

13. Driftnets are placed in the water at night and ... catch virtually all fish, marine mammals, and sea turtles that cross their paths as they drift in the wind and ocean currents.

14. Driftnets are a nonselective type of fishing gear. A high percentage of the fish caught are not the target of the particular driftnet fishery. These non-target fish species are generally discarded at sea, even where the fish are the target of other fisheries. In some fisheries, only a small proportion of the catch is retained for sale.

15. Because the nets are composed primarily of non-degradable plastic, lost or discarded nets or net fragments continue to "ghost-fish," ensnaring fish and marine mammals as they drift aimlessly in the ocean.

* * * * * *

17. Whales, dolphins, sharks, sea turtles, sea birds, and nontarget fish become entangled in large-scale driftnets both when they are deployed and in use for fishing and when they are lost, abandoned or discarded. Such entanglements cause countless deaths of marine mammals, sea turtles, sea birds, and fish. Slow-reproducing species, such as whales and dolphins, are particularly vulnerable to the effects of driftnet fishing.

Similar description is contained in the report to Congress in support of adoption of the Enforcement Act. See, e.g., H.R.Rep. 262, Part 1, 102d Cong., 2d Sess. 4 (Oct. 22, 1992), U.S.C.C.A.N. 1992, p. 4090 ("large-scale driftnets are distinguished by their method of harvest, indiscriminately killing not only non-targeted fish, but dolphins, whales, turtles and seabirds").

The plaintiffs accuse Italians of continuing to engage in such carnage. Their complaint states:

40. The Mediterranean Sea is an enclosed sea. It has no exclusive economic zones, but some areas of varying sizes have been designated as territorial seas. A significant portion of the Mediterranean Sea is considered international waters or the high seas.

41. Italy has a large Mediterranean fleet of more than 600 vessels and 3000 workers fishing for swordfish with driftnets.

42. Throughout the 1990s, reports have documented that the average length of driftnets used by the Italian fleet in the Mediterranean Sea exceeds 2.5 kilometers.

43. The European Commission has reported in 1993 and 1994 that significant numbers of Italian fishing vessels are using driftnets in excess of 2.5 kilometers in length.

44. During the 1990s and as late as 1994, some Italian fishing vessels intercepted by authorities of other European countries have been found with driftnets longer than 2.5 kilometers.

45. Although swordfish are the target of the Italian driftnet fishery, far less than half of the catch is, in fact, swordfish....

C

The complaint points to resolutions of the United Nations General Assembly adopted on December 22, 1989, No. 44-225, recommending that countries impose a moratorium by June 30, 1992 on the use of large-scale driftnets beyond the exclusive economic zone of any nation, and on December 20, 1991, No. 46-215, calling for the moratorium to be globally implemented by December 31, 1992, including enclosed and semi-enclosed seas. The plaintiffs also point to a January 27, 1992 regulation of the European Economic Community, No. 345/92, which was adopted to implement the U.N. moratorium and which prohibits vessels from keeping on board or using driftnets exceeding 2.5 kilometers in length.

Prior to adoption of this law by the United Nations and on the part of the European Economic Community, which is now known as the European Union, the U.S. Congress had passed the Driftnet Impact Monitoring, Assessment, and Control Act of 1987, Pub.L. No. 100-220, Title IV, 101 Stat. 1477 (Dec. 29, 1987), which, among other things, sought to "reduce the adverse impacts of driftnets" in the "waters of the North Pacific Ocean, including the Bering Sea"¹ and mandated that the Secretary of Commerce immediately initiate, through the Secretary of State and in consultation with the cabinet Secretary responsible for the U.S. Coast Guard, negotiations with each foreign government which conducted, or authorized its nationals to conduct, driftnet fishing in those waters. See Pub.L. No. 100-220, §...