Caribbean Marine Services Co., Inc. v. Baldrige
| Decision Date | 14 April 1988 |
| Docket Number | Nos. 87-57845,87-5821,s. 87-57845 |
| Citation | 844 F.2d 668 |
| Parties | 46 Fair Empl.Prac.Cas. 1027, 46 Empl. Prac. Dec. P 37,935 CARIBBEAN MARINE SERVICES COMPANY, INC., a California Corporation; Carlos A. Garcia, Plaintiffs-Appellees, v. Malcolm BALDRIGE, Secretary of Commerce of the United States; Anthony Calio, Administrator, National Oceanic and Atmospheric Administration; William Evans, Assistant Administrator for Fisheries, National Marine Fisheries Services; E.C. Fullerton, Southwest Regional Director, National Marine Fisheries Service, Defendants-Appellants. CAROLINE M. CORP., INC.; Jose R. Rebelo; Francisco M. Nunes, Plaintiffs- Appellees, v. Malcolm BALDRIGE, Secretary of Commerce of the United States; Anthony J. Calio, Administrator, National Oceanic and Atmospheric Administration; William Evans, Assistant Administrator for Fisheries Service; E.C. Fullerton, Southwest Regional Director, National Marine Fisheries Service, Defendants- Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., Peter K. Nunez, U.S. Atty., Karen M. Shichman, Asst. U.S. Atty., San Diego, Cal., Eileen Sobeck, Peter R. Steenland, Jr., and Alice Thurston, Dept of Justice, Washington, D.C., for defendants-appellants.
Charles W. Froehlich, Jr., Peterson, Thelan & Price, Keith Zakarin, Lillick, McHose & Charles, San Diego, Cal., for plaintiffs-appellees.
Schulman and Schulman by Elizabeth Schulman, Thomas H. (Speedy) Rice, San Diego, Cal., for amicus curiae, American Civil Liberties Foundation of Southern California, San Diego Chapter.
Appeal from the United States District Court for the Southern District of California.
Before WALLACE, NORRIS and THOMPSON, Circuit Judges.
The Secretary of Commerce, the Administrator of the National Oceanic and Atmospheric Administration, the Assistant Administrator for Fisheries, National Fisheries Service, and the Southwest Regional Director of the National Marine Fisheries Service (government) appeal two preliminary injunctions prohibiting them from placing female observers on board commercial tuna boats owned and operated by Caribbean Marine Service Co. and Caroline M. Corp. (the owners). We have jurisdiction pursuant to 28 U.S.C. Sec. 1292(a)(1), and we reverse.
The owners and certain crew members (crew) fish for yellow fin tuna using purse seine nets. To locate the tuna, they scan the water looking for porpoises, which for unknown reasons often swim with the tuna. Nets are set around the porpoises, and the tuna swimming beneath them are captured when the net is closed or "pursed" around them. During this procedure, many porpoises may be caught in the nets and drowned. In 1970 and 1971, for example, more than 600,000 porpoises were killed in the course of such operations. See Balelo v. Baldrige, 724 F.2d 753, 756 (9th Cir.) (en banc) (Balelo ), cert. denied, 467 U.S. 1252, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984).
In 1972, Congress enacted the Marine Mammal Protection Act (Act), 16 U.S.C. Secs. 1361-1406. One of the declared goals of the Act is to reduce the number of incidental kills and injuries to marine mammals permitted in the course of commercial fishing operations. Id. Sec. 1371(a)(2). In furtherance of this goal, section 1372 of the Act prohibits the killing or "taking" of any marine mammal except in accordance with permits issued by the Secretary of Commerce (Secretary). Id. Sec. 1372. Section 1373 directs the Secretary to prescribe regulations regarding permitted takings of marine mammals and authorizes the Secretary to set quotas restricting the number of porpoises that may be taken pursuant to such permits each year. Id. Sec. 1373.
Pursuant to section 1373, the Secretary promulgated regulations requiring permit holders to allow an employee of the National Oceanic and Atmospheric Administration (Administration) to accompany fishing vessels "for the purpose of conducting research and observing operations, including collecting information which may be used in civil or criminal penalty proceedings, forfeiture actions, or permit or certificate sanctions." 50 C.F.R. Sec. 216.24(f)(1) (1986). In Balelo, this court, sitting en banc, held that the Secretary did not exceed the scope of his authority in promulgating this regulation and that the placement of observers aboard the vessels did not constitute an unreasonable warrantless search within the meaning of the fourth amendment. 724 F.2d at 755.
The Administrator's new policy of hiring female, as well as male, observers to accompany selected fishing vessels on their voyages prompted the present litigation. Before 1986, the Administration did not hire women to fill positions as porpoise observers aboard fishing vessels. A number of female applicants complained of discrimination, and the Chief of the Administration's Civil Rights Division conducted an administrative inquiry into the complaints. He concluded that the practice of denying women employment on the tuna vessels solely because of their sex violated Title VII of the Civil Rights Act of 1964. Pursuant to his recommendation, the Administration began recruiting female as well as male applicants for the tuna boat observer program. Four women were recruited for the observer position in 1986 and were assigned to their first voyages in January of 1987.
In November of 1986, the Administration notified the tuna fleet that women were being trained as observers and that the female observers could be placed aboard the vessels in the near future. The letter sent to each owner stated that no alterations of the vessels or special accommodations would be required, but that any adjustments that could be made to achieve compatibility between male crew members and female observers were encouraged.
The owners were notified in December 1986 and January 1987 that a female observer would be assigned to accompany their vessels, the M/V Mariner and the M/V Apure, on their next voyages. In two separate actions, the owners and crew filed these actions for declaratory and injunctive relief. In each action, the owners and crew alleged that the Administrator's directive requiring the presence of female observers threatened a violation of the crew members' constitutional privacy rights and a violation of regulations requiring the observer to carry out his duties so as to minimize interference with fishing operations, 50 C.F.R. Sec. 216.24(f)(2) (1986). The owners and crew sought and obtained temporary restraining orders prohibiting the government from implementing its new directive. The owners and crew then moved for preliminary injunctive relief. They supplemented their motions with various declarations describing the living and working conditions on the vessels. We now summarize these declarations.
A fishing voyage may last three months or longer, depending upon fishing conditions. During this period, the crew members work together on the deck of the boat, eat and drink together in the small galley, and are otherwise forced to interact with one another in their bunkrooms, in the passageways, and in the common showers and toilets.
The crew members allegedly enjoy little or no privacy with respect to intimate bodily functions. They share small, dormitory-style bunkrooms and common toilets and showers. Because the bunkrooms are cramped, the crew members usually undress in the common area of the bunkroom, rather than behind curtains in their bunks. Moreover, because the common toilets and showers lack partitions or curtains, they usually bathe and perform other bodily functions in view of their cabinmates. Though single and double cabins equipped with private bathrooms exist on the vessels, these are assigned to officers. Porpoise observers usually bunk with the crews and share their bathroom facilities; thus, these observers may both observe and be observed by the crew members while undressing or performing bodily functions.
In addition, the crew members allegedly expose their bodies to the view of other members of the boat's complement while working on deck. Declarations submitted by the owners and crew state that crew members sometimes remove their clothes on deck, urinate over the side of the deck, shower on deck, and use unenclosed toilets on the deck. The porpoise observer, while conducting observation duties on deck, may have occasion to view these activities as well.
Finally, the declarations state that the West Coast tuna fishing industry has suffered severe financial losses in the past few years. The declarations contend that the presence of a female observer could destroy morale and distract the crew, thus affecting the crew's efficiency and decreasing the vessel's profits. The declarations also express the owners' concern that the crew members, some of whom are allegedly crude men with little formal education, may harass or sexually assault a female observer. Such tortious conduct could subject the owners to uninsurable liability, and further endanger their profits. To support this allegation, the owners referred to an incident which occurred aboard a foreign vessel involving an assault by a Korean officer upon an American female who served as a foreign fishing observer. Finally, the owners claimed that officers would have to devote time to protecting the female observer from the crew, thus distracting them from their primary duty of locating and catching tuna.
The owners and crew argued that these declarations were sufficient to call into question the constitutionality of the Administration's order requiring that the owners permit female observers to accompany their vessels on extended fishing voyages. Due to the captains' practice of assigning government observers to bunk in the dormitory bunkrooms and the crew members' habit of undressing, showering, and relieving themselves on deck, the crew members allegedly would be forced to expose their naked bodies...
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