American Cetacean Society v. Baldridge
| Decision Date | 05 March 1985 |
| Docket Number | Civ. A. No. 84-3414. |
| Citation | 604 F. Supp. 1398 |
| Court | U.S. District Court — District of Columbia |
| Parties | AMERICAN CETACEAN SOCIETY, et al., Plaintiffs, v. Malcolm BALDRIDGE, et al., Defendants, and The Japanese Whaling Association & The Japanese Fishing Association, Defendant-Intervenors. |
COPYRIGHT MATERIAL OMITTED
William D. Rogers, James A. Beat and John F. Libby of Arnold & Porter, Washington, D.C., for plaintiffs.
F. Henry Habicht, II, Asst. Atty. Gen., Donald A. Carr and Dianne H. Kelly, U.S. Dept. of Justice, Peter H. Flournoy, of counsel, U.S. Dept. of State, and Robert McManus, Gen. Counsel, National Oceanic and Atmospheric Admin., Dept. of Commerce, Washington, D.C., for defendants.
Scott C. Whitney and Steven R. Perles, Washington, D.C., for defendant-intervenors.
TABLE OF CONTENTS
INTRODUCTION ......................................................................... 1400
FACTUAL AND STATUTORY BACKGROUND ..................................................... 1401
a) The Pelly Amendment ........................................................... 1402
b) The Packwood-Magnuson Amendment ............................................... 1403
c) The IWC Whaling Quotas ........................................................ 1403
d) The Nov. 13, 1984 Exchange of Letters ......................................... 1404
ANALYSIS
I. CERTIFICATION BY THE SECRETARY OF COMMERCE OF WHALING IN
EXCESS OF THE IWC QUOTAS IS MANDATORY AND NONDISCRETIONARY ....................... 1404
a) Fishing In Violation Of Quotas Established Under An International Convention
Was The Specific Wrong To Which Congress Intended Both Pelly
And Packwood-Magnuson To Apply .............................................. 1405
b) Agency Interpretation And Application Of Pelly And Packwood-Magnuson
Has Consistantly Resulted In Certification For Violations Of International
Quotas ...................................................................... 1407
c) The Intervenors' Motion For Summary Judgment Must Be Denied ................. 1408
II. THE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON
WHICH RELIEF MAY BE GRANTED IS DENIED AS THE INCORRECT
LEGAL STANDARD HAS BEEN APPLIED AND AS AN INJUNCTION IN
THE NATURE OF MANDAMUS IS PROPER WHERE, AS HERE, A NONDISCRETIONARY
ACT IS INVOLVED .................................................................. 1410
CONCLUSION ........................................................................... 1411
This action is before the Court on Cross-Motions for Summary Judgment, as well as a Motion to Dismiss for failure to state a claim upon which relief can be granted. The numerous plaintiffs in this case are all wildlife conservation groups which share a common dedication to preserving and protecting endangered species. The defendants are Secretary of Commerce Malcolm Baldridge and Secretary of State George Schultz, both being sued in their official capacity. In addition, the Japanese Whaling Association and Japanese Fisheries Association (hereinafter "JWA/JFA") have been allowed into this action as defendant/intervenors.
Plaintiffs contend that Secretary Baldridge violated a clear non-discretionary duty when he failed to certify to the President that Japanese nationals were engaged in sperm whaling in violation of the International Whaling Commission's (hereinafter "IWC") zero sperm whale quota for the 1984-85 season. Plaintiffs seek a declaratory judgment from this Court that such failure to certify was in violation of the Packwood-Magnuson Amendment to the Magnuson Fishery Conservation and Management Act of 1976. 16 U.S.C. §§ 1821(e)(2)(A)(i) and (B). Plaintiffs also request that the Court declare and adjudge that such whaling activities by any nation in excess of the IWC quota is necessarily an activity which "diminishes the effectiveness" of the International Convention for the Regulation of Whaling (hereinafter "the Convention"), the multi-lateral treaty which the IWC oversees.
Additionally, plaintiffs seek a permanent injunction from this Court enjoining both Secretaries Baldrige and Schultz, and their subordinates, from agreeing not to certify, and from failing to certify, any whaling activities by nationals of Japan that violate IWC whaling quotas, and from agreeing not to reduce, and from failing to reduce, Japanese fishing quotas in consequence of such certification.
The defendants argue that Secretary Baldridge's actions which give rise to this suit were within the scope of his discretion to determine what activities diminished the effectiveness of the Convention, and that his decision not to certify was actually designed to insure its continued effectiveness. Therefore, the defendants argue, the Packwood-Magnuson automatic sanction was never triggered. The JWA/JFA argue that the Japanese were never technically in violation of the Convention, and, therefore, the Japanese cannot be certified. In addition, they raise other arguments dealing with what they perceive as irregularities under the Administrative Procedure Act 5 U.S.C. § 551, et seq. They have also filed a motion to dismiss the complaint under Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. In this motion, the intervenors argue that plaintiffs fail to meet the appropriate standard for a permanent injunction in the nature of mandamus and that therefore the complaint cannot stand.
For the reasons set forth below, the Court denies the Motion to Dismiss, and grants the Plaintiffs' Motion for Summary Judgment.
For the past thirty five years, the international whaling industry has brought about the systematic devastation of the major whaling populations on this planet. Although a central focus of many cultures over the past centuries, whaling has gone beyond cultural identity and into the realm of international business. The whale was originally hunted for its oil, its ivory teeth and its meat. It was hunted in small numbers, as the technology of the early whalers limited their ability to catch more than a few whales each season. This has changed drastically, however, since the end of World War II. Improvements in technology, such as larger and stronger whaling ships and explosive harpoons, made whaling as big business both practical and profitable. New uses for whale products began to be discovered. The whale oil, once used for heat and light, is now used as a high-grade industrial lubricant. The meat, only rarely used for human consumption, is a major ingrediant in pet food and agricultural feed. The whalers, unrestrained by any regulations regarding their activities, took as many whales as they could find. By the early 1960's, blue and humpback whales had been virtually exterminated, driven to "commercial extinction," where there were too few remaining to make hunting them worthwhile. (Garrett Affidavit at 1). By the early 1970's, the major populations of large baleen whales in the Antarctic and North Pacific oceans had been destroyed. Fin and sei whale populations had been likewise reduced to small percentages of their original levels. Id. The whaling industry then refocused its efforts on the remaining available species: the sperm whale, the Bryde's whale, and the smaller minke whale.
The International Convention for the Regulation of Whaling, which created the IWC, arose as a result of the recognized need for some kind of coordinated regulation of international whaling. The Convention was signed in 1946 and entered into force on November 10, 1948. 62 Stat. 1716, T.I.A.S. No. 1849. Under the terms of the Convention, global annual whaling quotas and regulations restricting whaling methods are to be established at annual and special meetings of the IWC. Convention, Art. V ¶ 1. Originally, the IWC was used as a vehicle for the control of whale oil prices. However, since 1972 it has steadily evolved as an agency promoting conservation rather than commercialization of whales.
The United States government was a signatory of the Convention and is a member nation in the IWC. It has consistently taken the role of enforcing the quotas as set by the IWC with the threat of economic sanctions against countries which fail to adhere to the IWC limits. In 1971, Congress enacted the Pelly Amendment to the Fishermen's Protective Act of 1967, 22 U.S.C. § 1978, for the express purpose of creating a sanction against countries that refused to conduct their fishing operations consistent with international fishery conservation programs. The Pelly Amendment states that when the Secretary of Commerce determines that nationals of a foreign country are conducting fishing operations which "diminish the effectiveness" of any international fisheries conservation program to which the United States is a party, he shall so certify to the President. 22 U.S.C. § 1978(a)(1). The President may then direct the Secretary of the Treasury to prohibit the importation of fish products of the offending nation. 22 U.S.C. § 1978(a)(4). Within sixty days of certification, the President is required to notify Congress of any action taken as a result of such certification, or of his reasons for taking no action or taking only limited action against the offending nation. 22 U.S.C. § 1978(b).
On November 12, 1974, the Secretary of Commerce certified both Japan and the Soviet Union under the Pelly Amendment. The IWC had set a quota of 5,000 Antarctic minke whales for the 1973-74 season. Both nations had objected to the quota under the procedures set forth in the Convention. The Secretary determined, however, that when the Soviet Union took 4,000 minke whales and Japan took 3,713, that both countries had acted to "diminish the effectiveness" of...
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