Earth Island Institute v. Christopher

• Citation: 922 F. Supp. 616
• Decision Date: 10 April 1996
• Docket Number: Slip Op. 96-62. Court No. 94-06-00321.
• Parties: EARTH ISLAND INSTITUTE, a California Nonprofit Corporation; Todd Steiner; The American Society for the Prevention of Cruelty to Animals, a New York NonProfit Corporation; and The Humane Society of the United States, a Delaware Nonprofit Corporation, The Sierra Club, a California Nonprofit Corporation; and the Georgia Fishermen's Association, Inc., a Georgia Corporation, Plaintiffs, v. Warren CHRISTOPHER, Secretary of State; Robert E. Rubin, Secretary of Treasury; Elinor G. Constable, Assistant Secretary of State for the Bureau of Oceans, International Environmental, and Scientific Affairs; Ronald Brown, Secretary of Commerce; and Rolland A. Schmitten, Assistant Administrator for Fisheries, National Marine Fisheries Service, Defendants, and National Fisheries Institute, Inc., Intervenor-Defendant.
• Court: U.S. Court of International Trade

922 F. Supp. 616

EARTH ISLAND INSTITUTE, a California Nonprofit Corporation; Todd Steiner; The American Society for the Prevention of Cruelty to Animals, a New York NonProfit Corporation; and The Humane Society of the United States, a Delaware Nonprofit Corporation, The Sierra Club, a California Nonprofit Corporation; and the Georgia Fishermen's Association, Inc., a Georgia Corporation, Plaintiffs, v. Warren CHRISTOPHER, Secretary of State; Robert E. Rubin, Secretary of Treasury; Elinor G. Constable, Assistant Secretary of State for the Bureau of Oceans, International Environmental, and Scientific Affairs; Ronald Brown, Secretary of Commerce; and Rolland A. Schmitten, Assistant Administrator for Fisheries, National Marine Fisheries Service, Defendants and National Fisheries Institute, Inc., Intervenor-Defendant.

Slip Op. 96-62. Court No. 94-06-00321.

United States Court of International Trade.

April 10, 1996.

Legal Strategies Group, Emeryville, CA (Joshua R. Floum) for the plaintiffs.

Frank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division (Jeffrey M. Telep) and Environment & Natural Resources Division (Eileen Sobeck and Christiana P. Perry), U.S. Department of Justice; and Office of the Legal Adviser, U.S. Department of State (David Balton), Office of General Counsel, National Oceanic and Atmospheric Administration (Jason Patlis) and Office of the Chief Counsel, U.S. Customs Service (Lou Brenner, Jr.), of counsel, Washington, DC, for the defendants.

Garvey, Schubert & Barer, Washington, DC (Eldon V.C. Greenberg) for the intervenor-defendant.

Graham & James LLP, Washington, DC (Michael P. Daniels and Andrea Fekkes Dynes) for the government of El Salvador, amicus curiae.

MEMORANDUM & ORDER

AQUILINO, Judge:

In 1989, following years of mounting concern over possible extinction of sea turtles, Congress enacted Pub.L. No. 101-162, § 609, 103 Stat. 988, 1037-38, 16 U.S.C. § 1537 note, part (b)(1) of which provides that the importation into the United States of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely endangered species of sea turtles "shall be prohibited not later than May 1, 1991, except as provided in paragraph (2)", to wit:

(2) CERTIFICATION PROCEDURE. — The ban on importation of shrimp or products from shrimp pursuant to paragraph (1) shall not apply if the President shall determine and certify to the Congress not later than May 1, 1991, and annually thereafter that —

(A) the government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and

(B) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or

(C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course to such harvesting.

In slip op. 95-208, 19 CIT ___, ___, 913 F.Supp. 559, 580 (1995), appeal Nos. 96-1253, -1254 docketed (Fed.Cir. March 12, 1996), familiarity with which is presumed, this court found the foregoing statute unambiguous and therefore confirmed the annual congressional deadline of May 1st for the defendants to prohibit

the importation of shrimp or products of shrimp wherever harvested in the wild with commercial fishing technology which may affect adversely those species of sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of Commerce on June 29, 1987, 52 Fed.Reg. 24,244....

In handing down this opinion on December 29, 1995, the court did not consider itself at liberty to change this statutory date to January 1 or June 1 or to some other date of arguable convenience to the parties.

I

Nonetheless, and also seemingly in spite of the one and a half years' lead time originally afforded by Congress in the statute and the five first days of May since then, as well as the aforesaid four months' advance warning the timing of the court's decision entailed, come now the defendants (and the intervenor-defendant) with a motion for "modification" of that decision. It prays for an across-the-board, additional one-year extension of time to prohibit importation of shrimp or products from shrimp upon the condition Congress prescribed, supra, as well as for expedited hearing and determination thereof.

Such a hearing has been held, and the paucity of evidence offered in support of the motion enables this decision to be expeditious.

A

As filed initially, the motion was predicated upon declarations by the Under Secretary of State for Economic, Business and Agricultural Affairs and defendant Schmitten. The former confirms what the court held unlawful in slip op. 95-208, namely, "the federal defendants implemented Section 609 on the belief that Congress intended that law to apply only to nations in the Wider Caribbean region." Declaration of Joan E. Spero, para. 4, p. 3. The declarant also confirms what the record indicated, Congress had recognized, and the court thus found in its decision, i.e.,

sea turtles are a shared resource; they do not occur solely in waters under U.S. jurisdiction, but rather migrate widely through waters under the jurisdiction of many nations and on the high seas. Effective protection of sea turtles can only result from cooperative action among nations. That is why Section 609 calls for the negotiation of international agreements to this end.

Id., para. 15. See, e.g., H. Fountain, Navigation Satellites Have Rival: the Sea Turtle, N.Y. Times, March 11, 1996, at C4. In this regard,

based on all presently available data, ... a majority of the nations of the world have at least one of the relevant species of sea turtles in waters subject to their jurisdiction as well as commercial shrimp trawling operations in those waters. Of those, approximately 51 nations, including the 14 nations of the Wider Caribbean region previously determined to be covered by Section 609, have exported shrimp or shrimp products to the United States in recent years. Approximately 60 additional nations have at least one of the relevant species of sea turtles and commercial shrimp trawling operations, but have not exported shrimp or shrimp products to the United States in recent years.

Declaration of Joan E. Spero, para. 6, pp. 4-5. The Department of State is reported to have

promptly notified foreign nations of the Court Order through U.S. embassies and consulates around the world ... and to have actively urged affected nations to adopt, by May 1, 1996, programs governing the incidental taking of sea turtles in the course of shrimp harvesting comparable to the U.S. program.

8. As of March 6, 1996, 26 of the newly affected nations (including ... seven Latin American nations) have responded in some fashion as to make possible at least an initial prediction as to the likelihood of their situation on May 1, 1996. I would summarize their responses as follows:

• 15 have indicated that they would not be able to have a comparable program in place by May 1, 1996.

• 7 have indicated that they would likely be able to have a comparable program in place by May 1, 1996, provided the U.S. Government can assist them.

• 3 claim either that they have no commercial shrimp trawl fishery or that no turtles occur where their commercial shrimp trawl fishery takes place.

• 1 claims already to have a comparable program.

The remaining nations — i.e., the large majority of the newly affected nations — have not responded in a way that allows us to predict their future course on this matter.

Id., paras. 7, 8.

From this summary, Secretary Spero attempts to extrapolate the following points, among others:

— It is likely that many of the major shrimp exporting nations will be unable to implement a comparable program by May 1, 1996. Id., para. 9.

— The defendants stand willing to assist nations in the adoption and implementation of comparable programs. Id., para. 12.

— Widespread embargoes would cause substantial harm in at least three ways:

First, they could substantially impair the ability of the U.S. government to secure protection of sea turtles as envisioned in section 609.

Second, the embargoes would disrupt a vast quantity of international trade in shrimp.

Third, failure to postpone the deadline will cause serious and long-lasting harm to overall U.S. foreign policy interests, particularly to the promotion of liberalized trade through the progressive reduction of non-tariff barriers.¹

On its part, the intervenor-defendant National Fisheries Institute, Inc. ("NFI") filed a declaration of its Vice President for Government Relations, Richard E. Gutting, Jr., which attempts to estimate the "impacts" of the court's decision on the supply of shrimp in the United States, to calculate losses to the U.S. seafood industry and the consuming public which could result from the imposition of embargoes on May 1, 1996, and to assess the likely consequences of the court's order for sea turtles in U.S. waters and abroad and for domestic shrimp fishers.

At first blush, the foregoing declarations were of sufficient moment to cause the court to convene immediately, at which hearing the defendants and intervenor-defendant were afforded an opportunity to present evidence in support thereof.² They did not. Little was added to the few facts already included in their scripted generalizations. Either they could not or would not answer rudimentary questions seemingly relevant thereto. For example, as quoted above, Secretary Spero implicates more than 100 nations, yet counsel refused to name even one at the hearing, or to provide any acceptable legal basis for such refusal. See Tr. at 28-29....