Adams v. Vance
| Decision Date | 17 January 1978 |
| Docket Number | No. 77-1960,77-1960 |
| Parties | , 187 U.S.App.D.C. 41, 8 Envtl. L. Rep. 20,160 Jacob ADAMS et al. v. Cyrus VANCE, Secretary of State, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Bruce C. Rashkow, Atty., Dept. of Justice, Washington, D. C., with whom James W. Moorman, Asst. Atty. Gen., Edmund B. Clark and Margaret Strand, Attys., Dept. of Justice, Washington, D. C., were on the motion for summary reversal, for appellants.
S. Lynn Sutcliffe, Washington, D. C., pro hac vice, by special leave of Court, for appellees.
Oliver A. Houck, Washington, D. C., was on the brief for amicus curiae, National Wildlife Federation.
Bernard Fensterwald, Jr. and Marc Feldman, Washington, D. C., were on the memorandum of amicus curiae, Committee for Humane Legislation, Inc., in support of appellants' motion for summary reversal.
Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.
This cause came on for consideration of appellants' motion for summary reversal and appellees' motion to dismiss and the Court heard argument of counsel.
The Court is of the view that it has jurisdiction of the appeal from the order requiring the Secretary of State to file an objection. The Court is further of the view that this order should be vacated. The District Court assumed that there would be no injury to the United States if an objection were filed by the United States with the International Whaling Commission because such an objection could be withdrawn. However, the possibility of injury to the United States even from a provisional objection is set forth in the affidavits filed in this Court and similar assertions in the Environmental Impact Statement, in terms of prejudicing the ongoing efforts of the United States government to establish and administer an effective international machinery for the protection of marine mammals.
On consideration of the foregoing, it is
ORDERED by the Court that the order of the District Court be, and the same hereby is, vacated. Our order is issued without accompanying opinion in consideration of the time emergency.
Opinion for the Court filed by LEVENTHAL, Circuit Judge.
This case concerns a challenge by the Inupiat Eskimos to a decision by the Secretary of State. The International Whaling Commission (IWC) banned Eskimo hunting of the bowhead whale, subject to objection by the United States. On October 20, 1977, four days before the deadline for an objection, the Secretary decided against one. Plaintiffs sued the Secretary, and the District Court ordered him to object. That order was based on the unwarranted assumption that such objection would not harm the United States because the objection could be withdrawn. That assumption is clearly erroneous insofar as it represents a projection of fact, and is an unwarranted intrusion on executive discretion in the field of foreign policy and agreements insofar as it represents a judgment. We promptly vacated the order, and in this opinion we state our reasons. Subsequent to our order, on December 6 and 7, 1977, the IWC changed its position to permit subsistence hunting by Alaskan natives of a limited number of bowhead whales, but our opinion is to be read prospectively, as if issued on the date of the order.
The present controversy is the result of long-standing international concern over the survival of the bowhead whale, Balaena mysticetus. Subsistence hunting of the bowhead has been the vital element of a millenia-old Eskimo culture. Such hunting posed no danger to the bowhead during the time when its population was at a natural high level. However, irresponsible commercial whaling in the late nineteenth and early twentieth century drastically reduced the bowhead population. Although the bowhead had been under international protection from commercial whaling for most of the twentieth century, it has failed to proliferate back to its former level. If the bowhead population levels remain low, the species will be vulnerable to extinction by overhunting, oil pollution, or the spontaneous population "crashes" which occur in small populations. Accordingly, with the cooperation of the Eskimos themselves, the United States began steps toward regulation of Eskimo whaling which could protect the bowhead without impairing the unique Eskimo culture. 1
Before the United States could complete its domestic efforts at whaling control, the International Whaling Commission (IWC), a regulatory body presently consisting of members from seventeen nations, notified the United States in July, 1977 that it was eliminating the subsistence hunting exemption which had allowed Eskimos to hunt bowheads. The consequences of the IWC action are defined by treaty and statute. 2 Essentially, if the Secretary of State on behalf of the United States objected to the IWC action within 90 days (i. e. by 12:00 G.M.T., October 24, 1977) that IWC action would not become effective against the United States. In the absence of such objection, the IWC action would subject Eskimos who continue to hunt bowheads to criminal prosecution.
The United States prepared an elaborate draft environmental impact statement as a basis for the decision on whether to object, and revised the statement after extensive comment by legal representatives of the Eskimos, Alaskans, environmentalists, scientists, U.S. officials and others. On October 20, the Secretary of State announced that the United States would not object. Instead, he declared he would seek reconsideration of the IWC action at an IWC meeting in December. This course of action was approved by the President.
On October 21, the plaintiffs sued the Secretary of State on behalf of the Eskimos who would lose their freedom to hunt as a result of the failure to object. Plaintiffs noted the long history of statutes and administrative and judicial decisions which clearly recognize Eskimo land, fishing and whaling rights, and claimed the Secretary's decision violated the trust obligation to the Eskimos implicit in those statutes and decisions. 3 They also asserted that the environmental impact statement had failed to analyze important alternatives open to the Secretary. Noting that the deadline for objections was only three days away, plaintiffs asked the District Court to enter forthwith a temporary restraining order that would require the Secretary to file an objection. Such an objection, they contended, would not substantially harm the United States' efforts at international environmental cooperation because the International Whaling Convention of 1946 allows objections to be withdrawn freely any time after they are made.
After a short hearing on the afternoon of October 21, the District Court granted the relief requested, and directed the Secretary to file the objection. The court's order was explicitly premised on its view that "defendants will suffer no substantial harm through the issuance of a temporary restraining order, whereas plaintiffs will suffer the loss of their opportunity to meaningfully present their claims should their application be denied." The Secretary immediately appealed. We heard oral argument on October 24, a Federal holiday, and entered an order of reversal by 1:00 p. m., E.S.T.
At the outset, plaintiffs challenge our jurisdiction of this appeal. The District Court's order to the Secretary was styled as a temporary restraining order, and its directions concerned an action within the next ten days. The grant of a temporary restraining order under Rule 65(b), Fed.R.Civ.P., is generally not appealable. However, "(t)he label attached to an order by the trial court is not decisive with regard to whether it falls under Rule 65(a) or Rule 65(b) and the appellate court will look to other factors to determine whether an appeal should be allowed." Wright & Miller, Federal Practice and Procedure § 2962, at 619 (1973). Here the order was in purpose and effect a mandatory injunction appealable under 28 U.S.C. § 1292(a)(1). It did not merely preserve the status quo pending further proceedings, but commanded an unprecedented action irreversibly altering the delicate diplomatic balance in the environmental arena. When an order directs action so potent with consequences so irretrievable, we provide an immediate appeal to protect the rights of the parties. 4
Defendants argue that the basic issue in this case is a nonjusticiable political question. The Secretary's decision not to object to the IWC action is within the foreign affairs "prerogative," they contend, and a challenge to the conduct of this country's foreign affairs by the President and the State Department is not capable of judicial resolution. 5 Plaintiffs respond that the Secretary's manner of decision violated specific Congressional commands, including the laws creating the trust obligation to the Eskimos and the National Environmental Policy Act, and such violations constitute a justiciable controversy. 6
The determination of whether a particular request for relief in a particular case involving foreign affairs presents a political question requires a "discriminating analysis," Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 707, 7 L.Ed.2d 663, 682 (1962). Such a discriminating analysis is difficult on this appeal in view of the abbreviated record and compressed briefing necessitated by the upcoming deadline. We need not determine the application of the political question doctrine on this appeal from an early order in the case. Even if we assume, without deciding, that this request for relief is justiciable, the order of the District Court must be vacated. 7
The District Court treated this application for immediate injunctive relief as an ordinary one. Yet when...
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