Earth Island Institute v. Christopher, Slip Op. 95-103. Court No. 94-06-00321.

• Decision Date: 05 June 1995
• Docket Number: Slip Op. 95-103. Court No. 94-06-00321.
• Parties: EARTH ISLAND INSTITUTE, a California Nonprofit Corporation; Todd Steiner; The American Society for the Prevention of Cruelty to Animals, a New York Nonprofit Corporation; and The Humane Society of the United States, a Delaware Nonprofit Corporation, The Sierra Club, a California Nonprofit Corporation; and The Georgia Fishermen's Association, Inc., a Georgia Corporation, Plaintiffs, v. Warren CHRISTOPHER, Secretary of State; Robert E. Rubin, Secretary of Treasury; Elinor G. Constable, Assistant Secretary of State for the Bureau of Oceans, International Environmental, and Scientific Affairs; Ronald Brown, Secretary of Commerce; and Rolland A. Schmitten, Assistant Administrator for Fisheries, National Marine Fisheries Service, Defendants, and National Fisheries Institute, Inc., Intervenor-Defendant.
• Court: U.S. Court of International Trade

890 F. Supp. 1085

EARTH ISLAND INSTITUTE, a California Nonprofit Corporation; Todd Steiner; The American Society for the Prevention of Cruelty to Animals, a New York Nonprofit Corporation; and The Humane Society of the United States, a Delaware Nonprofit Corporation, The Sierra Club, a California Nonprofit Corporation; and The Georgia Fishermen's Association, Inc., a Georgia Corporation, Plaintiffs, v. Warren CHRISTOPHER, Secretary of State; Robert E. Rubin, Secretary of Treasury; Elinor G. Constable, Assistant Secretary of State for the Bureau of Oceans, International Environmental, and Scientific Affairs; Ronald Brown, Secretary of Commerce; and Rolland A. Schmitten, Assistant Administrator for Fisheries, National Marine Fisheries Service, Defendants and National Fisheries Institute, Inc., Intervenor-Defendant.

Slip Op. 95-103. Court No. 94-06-00321.

United States Court of International Trade.

June 5, 1995.

Heller, Ehrman, White & McAuliffe, San Francisco, CA (Joshua R. Floum, Sylvia Quast and Nicole J. Walthall) and Eugene Underwood, Jr., New York City, for plaintiffs.

Frank W. Hunger, Asst. Atty. Gen.; Lois J. Schiffer, Acting Asst. Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civ. Div. (Marc E. Montalbine and Jeffrey M. Telep) and Environment & Natural Resources Div. (James C. Kilbourne and Christiana P. Perry), U.S. Dept. of Justice; and Office of the Legal Adviser, U.S. Dept. of State (David Balton) and Office of Gen. Counsel, National Oceanic and Atmospheric Admin. (Jason Patlis), Washington, DC, of counsel, for defendants.

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

Opinion & Order

AQUILINO, Judge:

Having moved successfully for dismissal of the claims pleaded by Earth Island Institute and its director of the Sea Turtle Restoration Project, Todd Steiner, in the U.S. District Court for the Northern District of California, No. C-92-0832 JPV, aff'd, Earth Island Institute v. Christopher, 6 F.3d 648 (9th Cir. 1993), the defendants seek similar relief herein via an erroneously-styled Partial Motion to Dismiss. The decisions of those courts in California, familiarity with which is presumed, were to the effect that whatever federal subject-matter jurisdiction exists over plaintiffs' claims lies exclusively with this Court of International Trade pursuant to 28 U.S.C. § 1581(i)(3) and (4).

I

Counsel for the defendants chose to take issue with the plaintiffs by filing an answer to their current complaint before interposing the aforementioned motion, which, according to CIT Rule 12, is thus one for partial summary judgment under Rule 56 since it presents matters outside the pleadings within the meaning of that rule (although not the statement required by paragraph (i) thereof).

As submitted, the motion seeks discharge of all the named parties plaintiff save the Georgia Fishermen's Association, Inc. and of the Secretary of Commerce and the Assistant Administrator of the National Marine Fisheries Service as parties defendant on essentially the same ground, lack of standing to sue or be sued. The motion also seeks dismissal of the complaint insofar as it attempts to challenge the U.S. Department of State's certifications to Congress regarding the comparability of programs adopted by foreign countries to protect turtles from dangers inherent in trawling the seas for shrimp.

A

Such certifications emanate from an appropriations act for the Departments of Commerce and State, among others, Pub.L. No. 101-162, 103 Stat. 988 (1989), included in which was the following provision:

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 to such harvesting.

103 Stat. at 1037-38.

In concluding that this court has subject-matter jurisdiction, the California district court restricted its ruling to the foregoing section 609(b); it held there could be no judicial review under subsection (a) because the claims based thereon "raise issues relating to the foreign affairs function, which rests within the exclusive province of the Executive Branch." 6 F.3d at 650. A majority of the Ninth Circuit panel concurred that such review would violate the constitutional principle of separation of powers. Compare id. with 6 F.3d at 654-56 (Brunetti, J., dissenting in part).

Plaintiffs' current complaint abandons any claims for relief under section 609(a). See, e.g., Plaintiffs' Memorandum in Opposition to Defendants' Partial Motion to Dismiss, p. 7 n. 7. Among others, the claims for relief now are that this court (1) declare that the defendants have failed to implement the law, particularly the foregoing statute, by improperly confining its mandate to the Caribbean/Atlantic Ocean and failing to impose import prohibitions on shrimp and shrimp products; (2) declare that guidelines promulgated under the aegis of the Secretary of State are arbitrary and capricious and constitute an abuse of discretion; and (7) enjoin the defendants from allowing the importation of shrimp and shrimp products from any nation with commercial fishing operations which may adversely impact sea turtles unless and until the Secretary determines and certifies that the foreign nation has a current and enforceable sea-turtle-protection program and an incidental taking rate comparable to that of the United States.

B

The papers before the court portray five of the remaining seven species of sea turtles, namely, Kemp's ridley (Lepidochelys kempi), loggerhead (Caretta caretta), green turtle (Chelonia mydas), hawksbill (Eretmochelys imbricata) and leather-back (Dermochelys coriacea) as still found regularly within coastal waters of the United States. Though apparently coveted and thus captured and killed by Homo sapiens since the beginning of time, according to the complaint it is "widely believed by scientists studying sea turtle populations that the inadvertent capture of turtles in shrimp trawls is a major factor in the mortality and decimation of these species and significantly hinders recovery of their populations." That is, when nets are dragged through the seas, snaring marine life in their paths, turtles can and do become entangled therein and drown if trapped too long beneath the surface. Allegedly, the extent of this phenomenon caused the National Marine Fisheries Service, acting at the behest of the Secretary of Commerce, to conduct research which led by 1981 to development of turtle-excluder devices or "TEDs" capable of releasing turtles, but not shrimp, from trawls. Effective October 1, 1987, such devices became mandatory for U.S. shrimp trawlers in the Gulf of Mexico and the Atlantic Ocean off the southeastern United States. See Sea Turtle Conservation; Shrimp Trawling Requirements, 52 Fed. Reg. 24,244 (June 29, 1987).

Leatherback, hawksbill, Kemp's ridley and green turtles have been listed as "endangered" within the meaning of the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq., while...