Earth Island Institute v. Daley

Decision Date02 April 1999
Docket NumberNo. 98-09-02818.,Slip. Op. No. 99-32.,98-09-02818.
Citation48 F.Supp.2d 1064
PartiesEARTH ISLAND INSTITUTE, A California Nonprofit Corporation; Todd Steiner; the American Society for the Prevention of Cruelty to Animals, A New York Nonprofit Corporation; the Humane Society of the United States, A Delaware Nonprofit Corporation; and the Sierra Club, A California Nonprofit Corporation, Plaintiffs, v. William M. DALEY, Secretary of Commerce; Madeleine Albright, Secretary of State; Robert E. Rubin, Secretary of Treasury; Melinda Kimble, Acting Assistant Secretary of State for the Bureau of Oceans and International Environmental and Scientific Affairs; Rolland A. Schmitten, Assistant Administrator for Fisheries, National Marine Fisheries Service; and Stuart E. Eizenstat, Under Secretary of State for Economic, Business and Agricultural Affairs, Defendants, and National Fisheries Institute, INC., Intervenor-Defendant.
CourtU.S. Court of International Trade

Legal Strategies Group (Joshua R. Floum and Louisa M. Daniels), Emeryville, CA, for the plaintiffs.

David W. Ogden, Acting Assistant Attorney General, and Lois J. Schiffer, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division (Lucius B. Lau) and Environment and Natural Resources Division, Wildlife and Marine Resources Section (Eileen Sobeck and Jane P. Davenport), U.S. Department of Justice; and Jay S. Johnson, Deputy General Counsel, National Oceanic and Atmospheric Administration, U.S. Department of Commerce; and Office of the Legal Advisor, U.S. Department of State (Violanda Botet), of counsel, for the defendants.1

Garvey, Schubert & Barer (Eldon V.C. Greenberg), Washington, DC, for the intervenor-defendant.

Memorandum & Order

AQUILINO, District Judge.

This case follows in the wake of legislation begun more than ten years ago in the Congress of the United States, followed by litigation in the U.S. District Court for the Northern District of California, continued in its Court of Appeals for the Ninth Circuit and then this Court of International Trade, followed by an appeal to the U.S. Court of Appeals for the Federal Circuit by the government and also by other nations' appeals to the World Trade Organization against the government. The complaint raises an issue first raised by the plaintiffs in case no. 94-06-00321 and resolved by this court sub nom. Earth Island Institute v. Christopher, 20 CIT ___, 942 F.Supp. 597 (1996), which decision2 was vacated by the Federal Circuit some two years later on procedural grounds viz. Earth Island Institute v. Albright3.

I

The enactment of Congress which is at the core of this case and continuing controversy is found within the 1989 appropriations act for the Departments of Commerce and State, among others, Pub.L. No. 101-162, 103 Stat. 988, to wit:

Sec. 609. (a) The Secretary of State, in consultation with the Secretary of Commerce, shall, with respect to those species of sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of Commerce on June 29, 1987

(1) initiate negotiations as soon as possible for the development of bilateral or multilateral agreements with other nations for the protection and conservation of such species of sea turtles;

(2) initiate negotiations as soon as possible with all foreign governments which are engaged in, or which have persons or companies engaged in, commercial fishing operations which, as determined by the Secretary of Commerce, may affect adversely such species of sea turtles, for the purpose of entering into bilateral and multilateral treaties with such countries to protect such species of sea turtles;

(3) encourage such other agreements to promote the purposes of this section with other nations for the protection of specific ocean and land regions which are of special significance to the health and stability of such species of sea turtles;

(4) initiate the amendment of any existing international treaty for the protection and conservation of such species of sea turtles to which the United States is a party in order to make such treaty consistent with the purposes and policies of this section; and

(5) provide to the Congress by not later than one year after the date of enactment of this section

(A) a list of each nation which conducts commercial shrimp fishing operations within the geographic range of distribution of such sea turtles;

(B) a list of each nation which conducts commercial shrimp fishing operations which may affect adversely such species of sea turtles; and

(C) a full report on —

(i) the results of his efforts under this section; and

(ii) the status of measures taken by each nation listed pursuant to paragraph (A) or (B) to protect and conserve such sea turtles.

(b)(1) IN GENERAL. — The importation of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely such species of sea turtles shall be prohibited not later than May 1, 1991, except as provided in paragraph (2).

(2) CERTIFICATION PROCEDURE. — The ban on importation of shrimp or products from shrimp pursuant to paragraph (1) shall not apply if the President shall determine and certify to the Congress not later than May 1, 1991, and annually thereafter that —

(A) the government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and

(B) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or

(C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting.4

When the government decided to enforce this statute only within the "Wider Caribbean/Western Atlantic region", Earth Island Institute et al. brought their original action, complaining, among other things, that, on its face, the statute required worldwide application. This court ultimately concurred, Earth Island Institute v. Christopher, 19 CIT 1461, 913 F.Supp. 559 (1995). The government was afforded a period of five months to begin to prohibit

the importation of shrimp or products of shrimp wherever harvested in the wild with commercial fishing technology which may affect adversely those species of sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of Commerce on June 29, 1987, 52 Fed.Reg. 24,244, except as provided in Pub.L. No. 101-162 § 609(b)(2), 16 U.S.C. § 1537 note, and to report the results thereof to the court.

19 CIT at 1485-86, 913 F.Supp. at 580. The government responded with a motion for an additional one-year extension of time to comply. The motion was denied, and a final judgment to the foregoing effect was entered. See Earth Island Institute v. Christopher, 20 CIT ___, 922 F.Supp. 616, appeals dismissed, 86 F.3d 1178 (Fed.Cir.1996).

A

Soon thereafter, the State Department published Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations5 and Bureau of Oceans and International Environmental and Scientific Affairs; Certifications Pursuant to Section 609 of Public Law 101-162, 61 Fed.Reg. 24,998 (May 17, 1996). The April 19 notice announced that the

Department of State has determined that import prohibitions imposed pursuant to Section 609 do not apply to shrimp or products of shrimp harvested ... by commercial shrimp trawl vessels using TEDs comparable in effectiveness to those required in the United States.

* * * * * *

Shrimp Exporter's Declaration. The Department of State has determined that, in order to achieve effective implementation of Section 609 on a worldwide basis, beginning May 1, 1996, all shipments of shrimp and products of shrimp into the United States must be accompanied by a declaration (DSP-121, revised) attesting that the shrimp accompanying the declaration was harvested either under conditions that do not adversely affect sea turtles ... or in waters subject to the jurisdiction of a nation currently certified pursuant to Section 609. All declaration[s] must be signed by the exporter of the shrimp. A government official of the harvesting nation must also sign those declarations asserting that the accompanying shrimp was harvested under conditions that do not adversely affect sea turtles. The declaration must accompany the shipment through all states of the export process, including in the course of any transshipments and of any transformation of the original product.6

Earth Island Institute et al. challenged this approach as "dangerous" and "disingenuous" because it

eliminates any incentive for countries to put TEDs on more than a handful of nets. Countries can evade the Law's embargo by exporting to the United States those shrimp caught by a few designated vessels which are equipped with TEDs, while exporting elsewhere shrimp caught by those which are not. This eviscerates both of Congress' purposes in enacting the Turtle Law. It fails to create the level playing field which Congress undeniably sought for the U.S. fleet, which is required to put TEDs on each and every vessel. It also guts the Law's objective of protecting these endangered species — for substantial portions of the shrimping fleets of exporting nations may now eschew TEDs with impunity.

20 CIT at ___, 942 F.Supp. at 600-01. In other words, the plaintiffs contended that the State Department's regulations were not in conformity with the court's judgment, whereupon they moved the court to compel the government to "embargo all wild-caught shrimp exports from countries which do not adopt a regulatory scheme requiring TEDs that is...

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4 cases
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    • U.S. Court of Appeals — Federal Circuit
    • March 21, 2002
    ...found that importation of shrimp from uncertified countries violated the provisions of section 609(b). Earth Island Inst. v. Daley, 48 F.Supp.2d 1064, 1081 (Ct. Int'l Trade 1999). Soon afterwards, the State Department issued its 1999 Guidelines. Designed to meet the WTO's objections, the 19......
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