Earth Island Institute v. Mosbacher
| Decision Date | 28 August 1990 |
| Docket Number | No. C-88-1380-TEH.,C-88-1380-TEH. |
| Citation | 746 F. Supp. 964 |
| Parties | EARTH ISLAND INSTITUTE, a California nonprofit corporation; the Marine Mammal Fund, a California corporation, and David R. Brower, Plaintiffs, v. Robert MOSBACHER, Secretary of Commerce; Dr. John Knauss, Administrator of the National Oceanic and Atmospheric Administration; Dr. William W. Fox, Jr., Assistant Administrator, National Marine Fisheries Service; and Nicholas Brady, Secretary of the Treasury, Defendants. American Tunaboat Association; Joseph J. Medina, Jr., and Manuel A. Silva, Intervenors-Defendants. |
| Court | U.S. District Court — Northern District of California |
Wondie Russell, Wayne S. Braveman, Joshua R. Floum, Cynthia L. Koehler, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for plaintiffs.
Richard B. Stewart, Asst. Atty. Gen., James C. Kilbourne, Charles R. Shockey, Attys., Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for defendants.
C. Hugh Friedman, Lorenz, Alhadeff, Lundin & Oggel, San Diego, Cal., David G. Burney, John A. Hodges, Wiley, Rein & Fielding, Washington, D.C., August J. Felando, San Diego, Cal., for intervenor-defendant American Tunaboat Ass'n.
ORDER FOR PRELIMINARY INJUNCTION
This matter comes before the Court on Plaintiffs' motion for preliminary injunction. Plaintiffs seek to enforce various provisions of the Marine Mammal Protection Act, 16 U.S.C. §§ 1361 et seq., particularly those relating to the protection of dolphins. Specifically, plaintiffs ask the Court to enforce provisions of the statute which they claim require a ban on the import of tuna from foreign nations until such time as certain findings regarding incidental dolphin takings are made.
Plaintiffs' motion came on for hearing on Monday, Aug. 20, 1990. After considering the parties' written and oral arguments, it appears to the satisfaction of the Court therefrom that plaintiff's motion for a preliminary injunction should be GRANTED in part and DENIED in part and that, unless a preliminary injunction is granted, plaintiffs may suffer irreparable injury before the matter can be brought to trial.
1. Plaintiff Earth Island Institute is a California non-profit corporation with its principal place of business in San Francisco, California. It is a national organization whose members share a commitment to the protection of marine mammals.
2. Plaintiff The Marine Mammal Fund is a California non-profit corporation with its principal place of business in San Francisco, California. Its charter is to sustain and enhance the ocean ecology with an emphasis on the survival of marine mammal species.
3. Plaintiff David R. Brower is a resident of Berkeley, California.
4. Defendant Secretary of the United States Department of Commerce is charged by law with the responsibility of enforcing all aspects of the Marine Mammal Protection Act, 16 U.S.C. §§ 1361 et seq. (MMPA); in this regard, he is also responsible for the actions of the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS).
5. Defendant Administrator of the NOAA is allegedly authorized to carry out functions described in the MMPA.
6. Defendant Assistant Administrator of the NMFS is allegedly authorized to carry out functions described in the MMPA.
7. Defendant Secretary of the United States Treasury Department is charged with certain duties in relation to enforcement of the MMPA pursuant to Section 1371(a)(2) of the MMPA, especially as regards banning the importation into the United States of certain commercial fish and fish products.
Yellowfin tuna, which are one of a number of tuna species caught for food, are commonly caught with purse seine nets. Purse seines are large nets which are manoeuvered around the fish by means of floats and weights and which are then closed like a purse upon the fish trapped inside.
In the Eastern Tropical Pacific Ocean (ETP), a five to seven million square mile area of ocean stretching from Southern California to Chile and extending west for nearly three thousand miles, schools of yellowfin tuna often associate with herds of dolphin and the two groups move together as they forage for food. The dolphins swim in the upper levels of the ocean where they are visible as they break the surface to breathe and leap into the air. The tuna forage below the dolphin in the deeper water. The result of this relationship is that the tuna fishing fleets from several nations, including the United States and numerous South and Central American nations such as Mexico, Ecuador, Panama and Venezuela, take advantage of this natural phenomenon by pursuing the visible dolphin herds in order to locate schools of yellowfin tuna possibly below.
Due to the association between dolphins and yellowfin tuna, fishing vessels often set their purse seine nets on dolphins in order to catch the tuna. In this process, referred to as "setting on dolphins," the air-breathing dolphins are intentionally chased and deliberately encircled in the nets in order to catch the yellowfin tuna which may be below. To expedite the process of closing the nets into a circle, the tuna fishermen and women sometimes use explosives and chase boats to drive the dolphins into the center of their nets. Setting on dolphins often results in the death and maiming of some or all of the dolphins entangled in the nets. Dolphins not immediately killed may later die from serious injuries. The dolphin population in the eastern tropical Pacific has fallen significantly in the last twenty years, and at least one sub-species has fallen below the level needed to sustain the population.
In order to curb the worst excesses of the practice of "setting on dolphins," and to save the lives of dolphins and other marine mammals, harmed in this and other manners, Congress in 1972 enacted the Marine Mammal Protection Act (MMPA). Amendments to the MMPA were enacted in 1981, 1984 and 1988. The Act proclaimed an "immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate." 16 U.S.C. § 1371(a)(2). To achieve this goal, Congress, in Sections 1373 and 1374 of the Act granted the Secretary of Commerce broad powers to promulgate and enforce regulations designed to insure realization of the Act's objectives.
The MMPA and the United States tuna fishing fleet
In order to set on dolphins, the American Tunaboat Association receives a general permit. This general permit is the mechanism by which the United States fleet can be given permission to intentionally pursue, capture and kill dolphins in the course of its commercial tuna fishing operations. Absent the permit, this conduct is absolutely proscribed under the MMPA. In 1980, an absolute ceiling on dolphin mortality of 20,500 was included in the "general permit" issued to the American Tunaboat Association. This limit was later incorporated into the NMFS regulations implementing the Act and codified in the Act itself. In 1981, Section 1371 of the Act was amended to provide that:
the goal, of zero mortality shall be satisfied in the case of the incidental taking of marine mammals in the course of purse seine fishing for yellowfin tuna by a continuation of the application of the best marine mammal safety techniques and equipment that are economically and technologically practicable.
Subsequent to the enactment of the MMPA, various dolphin-saving measures have been researched and implemented by the United States tuna fishing fleet and the American Tunaboat Association. On January 17, 1989, this Court, relying upon a provision of the MMPA, granted plaintiffs' motion for a preliminary injunction requiring that all United States certificated tuna vessels fishing within the Eastern Tropical Pacific must have a certified observer on board for the observation of fishing operations, unless for reasons beyond the control of the Secretary of Commerce, an observer is unavailable.
The MMPA and the foreign tuna fishing fleet
Today this Court addresses provisions of the MMPA which apply to the foreign tuna fishing fleet. The killing of dolphins by foreign tuna fleets has been the object of intense Congressional concern for almost two decades. The Marine Mammal Protection Act of 1972, 16 U.S.C. § 1361 et seq., as originally enacted directed the Secretary of the Treasury to "ban the importation" of commercial fish or fish products caught with "technology resulting in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards." 16 U.S.C. § 1371(a)(2).
In 1984, concerned that the NMFS was not holding foreign vessels to Unites States dolphin protection standards, Congress amended the MMPA to lessen the agency's discretion, and established stringent and specific restrictions on foreign nations seeking to import tuna into the United States. Under the 1984 amendment to § 101 of the MMPA, tuna harvested with purse seines in the eastern tropical Pacific Ocean (ETP) can be imported only upon a demonstration by the government of the foreign nation that it: (1) has in place a "comparable" regulatory program to that of the United States fleet for protecting dolphins from commercial fishing operations; and (2) has an average incidental marine mammal taking rate "comparable" to that of the United States fleet. 16 U.S.C. § 1371(a)(2)(B).
A full four years after the 1984 MMPA amendments were enacted, the NMFS had only issued "interim final" regulations regarding the importation of tuna taken in association with dolphin kills. Moreover, these rules would have allowed foreign nations until 1991 to comply with the statute. Congress spoke to this issue by amending the MMPA to require foreign fleet compliance with certain of the comparability requirements by the end of 198...
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...138 S.Ct. 784, 787, 200 L.Ed.2d 75 (2018) ("[T]he word ‘shall’ usually creates a mandate, not a liberty."); Earth Island Inst. v. Mosbacher, 746 F.Supp. 964, 975–76 (N.D. Cal. 1990) (holding embargo of yellowfin tuna was "required by the MMPA, in carrying out Congress' will in protecting th......
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...intentionally chased and deliberately encircled in the nets in order to catch the yellowfin tuna which may be below." EIS v. Mosbacher, 746 F.Supp. 964, 967 (N.D.Cal.1990). These large nets are maneuvered around the fish by means of floats and weights and are then closed like a purse upon t......
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Earth Island Institute v. Brown, C88-1380 THE.
...foreign fleets, which in recent years have become the larger source of dolphin mortality in the ETP. Earth Island Institute v. Mosbacher, 746 F.Supp. 964, 967-68 (N.D.Cal.1990), aff'd, 929 F.2d 1449 (9th Cir.1991). This factor is particularly significant here because domestic fishermen are ......
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