Defenders of Wildlife, Earth Isl. Inst. v. Hogart, No. 02-1224.

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtSchall
Citation330 F.3d 1358
Decision Date04 June 2003
Docket NumberNo. 02-1224.
PartiesDEFENDERS OF WILDLIFE, EARTH ISLAND INSTITUTE, the Humane Society of the United States, Environmental Solutions International, Animal Welfare Institute, International Wildlife Coalition, American Humane Association, Earthtrust, Greenpeace Foundation, Animal Fund, American Society for the Prevention of Cruelty to Animals, Sierra Club, Samuel Labudde, and Craig Van Note, Plaintiffs-Appellants, and Fund for Animals and David Brower, Plaintiffs, v. William T. HOGARTH, Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, Donald L. Evans, Secretary of Commerce, Under Secretary of Commerce, Administrator of the National Oceanic and Atmospheric Administration, Assistant Secretary, National Oceanic and Atmospheric Administration, Secretary of State, Secretary of the Treasury, and Commissioner of the United States Customs Service, Defendants-Appellees.

Page 1358

330 F.3d 1358
DEFENDERS OF WILDLIFE, EARTH ISLAND INSTITUTE, the Humane Society of the United States, Environmental Solutions International, Animal Welfare Institute, International Wildlife Coalition, American Humane Association, Earthtrust, Greenpeace Foundation, Animal Fund, American Society for the Prevention of Cruelty to Animals, Sierra Club, Samuel Labudde, and Craig Van Note, Plaintiffs-Appellants, and
Fund for Animals and David Brower, Plaintiffs,
v.
William T. HOGARTH, Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, Donald L. Evans, Secretary of Commerce, Under Secretary of Commerce, Administrator of the National Oceanic and Atmospheric Administration, Assistant Secretary, National Oceanic and Atmospheric Administration, Secretary of State, Secretary of the Treasury, and Commissioner of the United States Customs Service, Defendants-Appellees.
No. 02-1224.
United States Court of Appeals, Federal Circuit.
June 4, 2003.

Page 1359

William J. Snape, III, Defenders of Wildlife of Washington, DC, argued for plaintiffs-appellants. Of counsel was Kumar Vaswani.

Lucius B. Lau, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendants-appellees. With him on the brief were Thomas L. Sansonetti, Assistant Attorney General; and David M. Cohen, Director. Of counsel on the brief were Anthony P. Hoang, Wayne D. Hettenbach, and M. Alice Thurston, Attorneys, Environment & Natural Resources Division, Department of Justice, of Washington, DC.

Brian O'Neill, Faegre & Benson LLP of Minneapolis, Minnesota, for amici curiae Dr. Albert Myrick & OrcaLab. With him on the brief was Colette B. Routel.

Before NEWMAN, LOURIE and SCHALL, Circuit Judges.

Opinion for the court filed by Circuit Judge SCHALL. Opinion concurring in part and dissenting in part filed by Circuit Judge PAULINE NEWMAN.

SCHALL, Circuit Judge.


Defenders of Wildlife, various other nongovernmental organizations, and several

Page 1360

individuals filed suit in the United States Court of International Trade challenging three administrative determinations made by the Assistant Administrator for Fisheries of the National Marine Fisheries Service ("NMFS"). NMFS is part of the National Oceanic and Atmospheric Administration ("NOAA"), which is a component of the United States Department of Commerce ("Commerce"). Plaintiffs1 asserted (1) that NMFS's Interim-Final Rule on the taking of dolphins from depleted stocks in the Eastern Tropical Pacific Ocean ("ETP") using the purse seine method of fishing violates the International Dolphin Conservation Program Act ("IDCPA") and therefore is not in accordance with law; (2) that the environmental assessment prepared by NMFS violated the National Environmental Policy Act ("NEPA") and applicable regulations and that NMFS should have completed an environmental impact statement for the tuna/dolphin program under review; and (3) that the affirmative findings of Commerce that lifted the United States' tuna embargo against Mexico violated the IDCPA.2 As relief, Plaintiffs sought a declaratory judgment that the government violated the IDCPA and NEPA through its administrative determinations, a remand to Commerce with instructions to issue a revised proposed rule, and an order to Commerce to complete an environmental impact statement on the tuna/dolphin program.

On December 7, 2001, the Court of International Trade denied Plaintiffs' motion for summary judgment on the administrative record and entered judgment in favor of the government. Defenders of Wildlife v. Hogarth, 177 F.Supp.2d 1336 (Ct. Int'l Trade 2001). The court held that the Interim-Final Rule was in accordance with the IDCPA and that Commerce had not violated NEPA. Id. at 1367. Plaintiffs now appeal.3 We affirm.

BACKGROUND
I. The ETP and Purse Seine Fishing

The ETP is a seven million square mile stretch of ocean that runs from the coast of California to the coast of Peru. It is host to numerous species of wildlife, including yellowfin tuna and dolphins. One quarter of the world's tuna catch occurs in the ETP; of all the tuna caught in the ETP, yellowfin tuna is the most economically significant species.

A unique synergy exists in the ETP between schools of yellowfin tuna and groups of dolphins. Yellowfin tuna inexplicably aggregate in large numbers beneath dolphin schools. Fishermen, seeking to exploit this synergy, devised a method of catching yellowfin tuna called purse seine fishing. Purse seine fishing is based on the principle that dolphins must break the surface of the water to breathe every several minutes, allowing fishermen to easily identify and locate groups of dolphins. Once a large dolphin group is located, fishermen use motorboats, explosives, and helicopters to chase the dolphins

Page 1361

for extended periods in an attempt to exhaust them.

Eventually, the group is herded into a small area, where the fishermen first surround the dolphins and the submerged yellowfin tuna with an immense fishing net, called a purse seine, and then draw the bottom of the net together to trap the tuna. The fishermen then haul the net on board to recover the tuna. Dolphins are released through a "backdown" procedure, which takes place when the fishermen reverse the vessel's direction after approximately one-half of the purse seine net has been rolled onboard. Purse seine fishing results in the drowning deaths of dolphins that become entangled in the net. From 1959 to 1972, millions of dolphins were killed in this manner, and public outcry prompted Congress to pass legislation banning purse seine fishing.

II. Statutes and International Agreements

In 1972, Congress passed the Marine Mammal Protection Act ("MMPA"). The MMPA required that all marine mammal populations be managed to maintain their "optimum sustainable population." Marine Mammal Protection Act, Pub.L. No. 92-522, 86 Stat. 1027 (1972) (codified as amended at 16 U.S.C. § 1361). The MMPA created "a moratorium on the taking and importation of marine mammals...," except that marine mammals were permitted to be taken "incidentally in the course of commercial fishing operations" and permits allowing such incidental taking could be issued pursuant to the provisions of the MMPA. Id. at 1029-30 (codified at 16 U.S.C. § 1371(a)). However, no permit could be issued for the taking of any marine mammal which had been designated by the Secretary as "depleted." Id. at 1031 (codified at 16 U.S.C. § 1371(a)(3)(B)). The MMPA further directed the Secretary of the Treasury to "ban the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of the United States standards." Id. at 1030 (codified at 16 U.S.C. § 1371(a)(2)). Upon conducting research required by the MMPA, the NMFS concluded that three dolphin stocks were depleted in the ETP: the coastal dolphin, the northeastern offshore spotted dolphin, and the eastern spinner dolphin. Regulation Governing the Taking and Importing of Marine Mammals, 42 Fed.Reg. 64,548-60 (1977); Taking and Importing of Marine Mammals; Listing of the Northeastern Offshore Spotted Dolphin as Depleted, 58 Fed.Reg. 58,285 (1993); Taking and Importing of Marine Mammals; Listing of the Eastern Spinner Dolphin as Depleted, 58 Fed.Reg. 46,006 (1993).

In 1988, Congress enacted the MMPA Amendments of 1988, Pub.L. No. 100-711, 102 Stat. 4755 (1988). The amendments specified criteria for allowing access to the United States market by tuna-harvesting nations and imposed embargoes on tuna imports from countries, including Mexico, that failed to meet those criteria. Id. Thereafter, in 1990, Congress enacted the Dolphin Protection Consumer Information Act, Pub.L. No. 101-627, § 901, 104 Stat. 4436, 4465 (1990), which established "dolphin safe" labeling standards and made it a violation of the Federal Trade Commission Act to label a product as "dolphin safe" if it contained (1) tuna harvested on the high seas by a vessel engaging in drift net fishing or (2) tuna harvested in the ETP by a vessel using the purse seine method, unless the tuna product was accompanied

Page 1362

by various statements demonstrating that no dolphins were intentionally encircled during the trip in which the tuna was caught. Id. § 901(d), 104 Stat. at 4466.

In 1992, the United States entered into a non-binding international agreement ("La Jolla Agreement"), which negotiated the creation of the International Dolphin Conservation Program ("IDCP"). The La Jolla Agreement stated that its objectives were to "progressively reduc[e] dolphin mortality in the eastern Pacific Ocean ... fishery to levels approaching zero through the setting of annual limits and ... with a goal of eliminating dolphin mortality in this fishery...." La Jolla Agreement, Apr. 23, 1992, Appendix 10

In 1995, the United States and eleven other countries signed the Panama Declaration, which formalized the La Jolla Agreement into a binding agreement. The purpose of the Panama Declaration was to strengthen the protection of dolphins by (1) reducing dolphin mortality in the ETP to levels approaching zero; (2) establishing annual dolphin mortality limits ("DML"); (3) creating incentives for vessel captains to further reduce dolphin mortality; and (4) establishing measures to avoid bycatch. Declaration of Panama, Oct. 4, 1995. The Panama Declaration is not self-executing. Consequently, it could not become legally binding domestically unless Congress implemented it through domestic legislation. Cf. Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 244, 104 S.Ct. 1776, 80 L.Ed.2d 273 (1984) ("Since the Convention is a self-executing treaty, no domestic legislation is required to give it the force of law in the United States.").

In 1997, Congress passed the IDCPA, Pub.L. No. 105-42, 111...

To continue reading

Request your trial
11 practice notes
  • Norsk Hydro Canada, Inc. v. U.S., No. 06-1044.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 14, 2006
    ..."cannot become binding domestically unless Congress implemented it through domestic legislation." Defenders of Wildlife v. Hogart, 330 F.3d 1358, 1362 (Fed. Cir.2003). Indeed, Congress has precluded challenges to agency action on the grounds that they are inconsistent with Uruguay Round Agr......
  • California Industrial Products, Inc. v. U.S., No. 05-1087.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • February 1, 2006
    ...V.I., 157 F.3d at 882. We begin our inquiry with the plain meaning of the text of the statute itself. Defenders of Wildlife v. Hogarth, 330 F.3d 1358, 1366 (Fed.Cir.2003) ("Deciphering the intent of Congress begins with the text of the statute."); Timex V.I., 157 F.3d at 882 ("The first and......
  • Koyo Seiko Co., Ltd. v. U.S., Slip Op. 07-128.
    • United States
    • U.S. Court of International Trade
    • August 23, 2007
    ...agreement is not domestically binding without Congressional implementation. Id. at 119 (citing Defenders of Wildlife v. Hogarth, 330 F.3d 1358, 1362 The Court of Appeals for the Federal Circuit has examined the practice in question and addressed the arguments Plaintiffs are making in two se......
  • Pac. Coast Fed'n of Fishermen's Ass'n v. Locke, No. C 10-04790 CRB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 5, 2011
    ...does not render the environmental impact [statement] arbitrary and capricious." Defenders of Wildlife, Earth Island Inst. v. Hogarth, 330 F.3d 1358, 1371 (Fed. Cir. 2003).5. The NMFS's Treatment Of Incomplete Or Unavailable Information Was Appropriate Plaintiffs challenge the following stat......
  • Request a trial to view additional results
11 cases
  • Norsk Hydro Canada, Inc. v. U.S., No. 06-1044.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 14, 2006
    ..."cannot become binding domestically unless Congress implemented it through domestic legislation." Defenders of Wildlife v. Hogart, 330 F.3d 1358, 1362 (Fed. Cir.2003). Indeed, Congress has precluded challenges to agency action on the grounds that they are inconsistent with Uruguay Round Agr......
  • California Industrial Products, Inc. v. U.S., No. 05-1087.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • February 1, 2006
    ...V.I., 157 F.3d at 882. We begin our inquiry with the plain meaning of the text of the statute itself. Defenders of Wildlife v. Hogarth, 330 F.3d 1358, 1366 (Fed.Cir.2003) ("Deciphering the intent of Congress begins with the text of the statute."); Timex V.I., 157 F.3d at 882 ("The first and......
  • Koyo Seiko Co., Ltd. v. U.S., Slip Op. 07-128.
    • United States
    • U.S. Court of International Trade
    • August 23, 2007
    ...agreement is not domestically binding without Congressional implementation. Id. at 119 (citing Defenders of Wildlife v. Hogarth, 330 F.3d 1358, 1362 The Court of Appeals for the Federal Circuit has examined the practice in question and addressed the arguments Plaintiffs are making in two se......
  • Pac. Coast Fed'n of Fishermen's Ass'n v. Locke, No. C 10-04790 CRB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 5, 2011
    ...does not render the environmental impact [statement] arbitrary and capricious." Defenders of Wildlife, Earth Island Inst. v. Hogarth, 330 F.3d 1358, 1371 (Fed. Cir. 2003).5. The NMFS's Treatment Of Incomplete Or Unavailable Information Was Appropriate Plaintiffs challenge the following stat......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT