Defenders of Wildlife v. Hogarth

• Decision Date: 07 December 2001
• Docket Number: No. 00-02-00060.,Slip Op. 01-142.,00-02-00060.
• Citation: 177 F.Supp.2d 1336
• Parties: DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. William T. HOGARTH, et al., Defendants.
• Court: U.S. Court of International Trade

Page 1336

177 F.Supp.2d 1336

DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. William T. HOGARTH, et al., Defendants.

Slip Op. 01-142.

No. 00-02-00060.

United States Court of International Trade.

December 7, 2001.

Defenders of Wildlife (William J. Snape, III), for Plaintiffs.

Robert D. McCallum, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Lucius B. Lau); Anthony P. Hoang, Attorney, Environment and Natural Resources Division, General Litigation Section, United States Department of Justice; Mark A. Brown and Wayne D. Hettenbach, Attorneys, Environmental and Natural Resources Division, Wildlife and Marine Resources Section, United States Department of Justice; Judson J. Feder, Southwest Regional Counsel, NOAA, United States Department of Commerce, of Counsel; Violanda Botet, Attorney-Advisor, Office of Legal Advisor, United States Department of State, of counsel, for Defendants.

Wilmer, Cutler & Pickering (Lynn M. Fischer) and the Ocean Conservancy (Jane P. Davenport), for Amici Curiae Environmental Defense, Inc., National Wildlife Federation, Inc., The Ocean Conservancy and World Wildlife Fund, Inc.

OPINION

BARZILAY, District Judge.

[Plaintiffs' Motion for Judgment pursuant to USCIT Rule 56.1 denied.]

I. INTRODUCTION

In this case, the court is asked to evaluate the latest actions taken by the government of the United States in its long effort to protect dolphins endangered as a result of certain tuna-fishing practices. This government action began in 1972, with the passage of the United States Marine Mammal Protection Act ("MMPA"), driven by intense interest in and activity on behalf of dolphins by U.S. individuals and environmental groups, some of whom find themselves on opposite sides of the question at bar in the current case.¹

Defenders of Wildlife² challenge three administrative determinations made by Penelope D. Dalton, et al,³ to implement the 1997 International Dolphin Conservation Program Act ("IDCPA"), which amended the MMPA. Specifically, Plaintiffs make three distinct claims: (1) that Commerce's Interim-Final Rule on the taking of allegedly depleted dolphins pursuant to fishing operations by tuna purse seine vessels in the Eastern Tropical Pacific ("ETP") ocean violates the MMPA, (2) that the Environmental Assessment ("EA") prepared by Defendants violates the National Environmental Policy Act ("NEPA") and applicable regulations, and that Defendants should have completed an Environmental Impact Statement ("EIS") for the entire new tuna/dolphin program, and (3) that the affirmative finding rendered by the United States Department of Commerce ("Commerce"), which lifted the United States' tuna embargo against Mexico, violates the IDCPA and NEPA. Defenders seek a declaratory judgment, a remand to Commerce with instructions to issue a revised proposed rule, and an order to Defendants to complete an EIS on the new tuna/dolphin program. Plaintiffs do not now seek a reinstatement of the embargo, but reserve their right to do so. Defendants oppose Plaintiffs' motion. The court exercises jurisdiction under 28 U.S.C. § 1581(i)(3) (1994).

II. BACKGROUND

The ETP is a seven million square mile stretch of ocean running from the coast of southern California to Peru. Yellowfin tuna swim beneath dolphins in these waters. Because dolphins surface for air and are hence more visible than tuna, fishermen in the ETP use dolphin sightings as an aid to catch tuna. One common method of fishing for tuna in the ETP involves lowering a commercial fishing net, called a purse seine, into the water around a group of dolphins. Once the net encircles the dolphins, a drawstring around the bottom of the net is closed to catch the yellowfin tuna below. During this process dolphins may become entrapped in the net. While some dolphins are released alive, others suffocate by the time a release can be made. Although certain safety devices in the nets and other changes in fishing practice have significantly decreased the number of dolphin mortalities associated with the purse seine method, some dolphin deaths continue to occur.

A. Background Legislation

In the early 1970s, an estimated 350,000 dolphins were killed annually due to purse seine fishing. Congress passed the MMPA in 1972 in response to public concern over the ETP yellowfin tuna fishing industry. 16 U.S.C. § 1361 (1972). Congressional findings indicated that

(1) certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities; [and that] ...

(6) marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem.

16 U.S.C. § 1361(1), (6). The MMPA centered on the principle of fisheries management to foster a sustainable population. The act primarily relied on a permit system to regulate fishing practices.

In 1988, Congress enacted the Marine Mammal Protection Act Amendments of 1988, Pub.L. No. 100-711, 102 Stat. 4755 (1988) ("1988 Amendments"), which specified criteria to be satisfied for the regulatory program of a tuna-harvesting nation to be considered comparable to that of the United States, and thus have access to the U.S. market. Pub.L. No. 100-711 at § 4, 102 Stat. at 4765. In 1990, Congress enacted the Dolphin Protection Consumer Information Act, ("DPCIA"). The DCPIA made it a violation of section 5 of the Federal Trade Commission Act ("FTCA") for any producer, importer, exporter, distributor, or seller of any tuna product sold in or exported from the United States to label that product as "dolphin-safe" if the product contained tuna harvested (a) on the high seas by a vessel engaging in driftnet fishing, or (b) in the ETP by a vessel using the purse seine method, unless the tuna was accompanied by various statements demonstrating that no dolphin was intentionally encircled during the trip in which the tuna was caught.

Pursuant to the 1988 Amendments, in August of 1990, the United States imposed an embargo on Mexico for failure to achieve comparability with U.S. tuna harvesting standards. H.R.Rep. No. 105-74(I), at 13 (1997), reprinted in 1997 U.S.C.C.A.N. 1628, 1631. Mexico then requested the establishment of a dispute settlement panel in accordance with the General Agreement on Tariffs and Trade ("GATT"). The panel concluded that the U.S. tuna embargoes violated GATT. However, the panel's decision was not adopted by the GATT Council, and was not pursued further by Mexico in the World Trade Organization ("WTO"), GATT's successor. In 1993, the European Union ("EU") brought a GATT challenge relating to the tuna embargo provisions of the MMPA. A GATT panel again ruled against the United States, but again the GATT Council did not adopt the decision.

In June of 1992, the United States entered into the La Jolla Agreement, a nonbinding international agreement setting forth programs to protect dolphins from harm in the ETP, and allowing the practice of purse seine fishing with dolphin mortality caps. Six months later, Congress enacted the International Dolphin Conservation Act of 1992 ("IDCA"), which amended the MMPA by (a) imposing a five-year moratorium upon the harvesting of tuna with purse seine nets; and (b) lifting tuna embargos upon those nations making a declared commitment to implement the moratorium and take further steps to reduce dolphin mortality. 1997 U.S.C.C.A.N. at 1632. The La Jolla Agreement led to the signing of the Panama Declaration, under which the United States and eleven other nations made affirmative commitments to strengthen the protection of dolphins by (a) reducing dolphin mortality to levels approaching zero, with the goal of eliminating dolphin mortality in the ETP; (b) establishing annual dolphin mortality limits ("DMLs"); (c) avoiding bycatch of immature yellowfin tuna and other non-target species such as sea turtles; (d) strengthening national scientific advisory committees; (e) creating incentives for vessel captains; and (f) enhancing the compliance of participating nations to these commitments. The Panama Declaration also sought to negotiate a new binding agreement to establish the International Dolphin Conservation Program ("IDCP"), contingent upon the United States amending its laws to (a) lift the embargoes imposed under the MMPA; (b) permit the sale of both dolphin-safe and non-dolphin safe tuna in the United States market; and (c) change the definition of "dolphin-safe tuna" to mean "tuna harvested without dolphin mortality," rather than tuna harvested without any dolphin encirclement. Panama Declaration at Annex I.

In 1997, Congress enacted the International Dolphin Conservation Program Act ("IDCPA"), which is the subject of this litigation. Pub.L. No. 105-42, 111 Stat. 1122 (1997). The act stated three purposes: (a) to give effect to the Panama Declaration; (b) "to recognize that nations fishing for tuna in the [ETP] have achieved significant reductions in dolphin mortality;" and (c) "to eliminate the ban on imports of tuna from those nations that are in compliance with the [IDCP]." See id. at § 2, 111 Stat. at 1122. The IDCPA amended the MMPA yet again and revised the criteria for banning imports. A nation would be permitted to export tuna to the United States if it provided documentary evidence that (a) it participates in the IDCP and is a member of the Inter-American Tropical Tuna Commission ("IATTC"); (b) it meets its obligations under the IDCP and the IATTC; and (c) it does not exceed certain DMLs. See id. at § 4, 111 Stat. at 1123-1124 (16 U.S.C. § 1371(a)(2)(B)). Furthermore, the...