Earth Island Institute v. Christopher

• Decision Date: 01 October 1993
• Docket Number: No. 92-16544,92-16544
• Citation: 6 F.3d 648
• Parties: 23 Envtl. L. Rep. 21,553 EARTH ISLAND INSTITUTE, a California nonprofit corporation; Todd Steiner, Plaintiffs-Appellants, v. Warren CHRISTOPHER, * Secretary of State, et al., Defendants-Appellees, and National Fisheries Institute, Inc., Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 648

6 F.3d 648

23 Envtl. L. Rep. 21,553

EARTH ISLAND INSTITUTE, a California nonprofit corporation;

Todd Steiner, Plaintiffs-Appellants, v. Warren CHRISTOPHER, ^* Secretary of State, et al.,

Defendants-Appellees,

and

National Fisheries Institute, Inc., Defendant-Intervenor-Appellee.

No. 92-16544.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 14, 1993.

Decided Oct. 1, 1993.

Deborah A. Sivas, Heller, Ehrman, White & McAuliffe, San Francisco, CA, for plaintiffs-appellants.

Albert M. Ferlo, Jr., Land and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Eldon V.C. Greenberg, Garvey, Schubert & Barer, Washington, DC, for intervenor-appellee National Fisheries.

Appeal from the United States District Court for the Northern District of California.

Before: SCHROEDER and BRUNETTI, Circuit Judges, and KING, ^** District Judge.

SCHROEDER, Circuit Judge:

Earth Island Institute appeals the district court's dismissal for lack of jurisdiction of its lawsuit to enforce the provisions of section 609 of Public Law 101-162, 103 Stat. 1037, which is codified in 16 U.S.C. Sec. 1537 (Supp.1993). The purpose of the statute is to promote the international protection of sea turtles.

Sea turtles are often trapped in the nets used in commercial shrimp trawl fishing and are then vulnerable to drowning. In response to this problem, scientists in this country developed "turtle excluder devices," ("TED's") to prevent the accidental drowning of turtles. Federal regulations mandated the use of TED's in this country. See 52 Fed.Reg. 24,244 (June 29, 1987). The goal of section 609 is to encourage foreign shrimp trawlers to use similar methods to protect sea turtles. ¹ The statute has two subsections. Subsection (a) requires the Secretary of State to initiate negotiations with foreign countries to develop treaties to protect sea turtles, and to report to Congress about such negotiations. Subsection (b) requires limitations on the importation of shrimp from nations that have not moved to protect sea turtles. If the President certifies that a country has undertaken measures to protect turtles, shrimp imports from that country are not banned.

In this case, Earth Island Institute and Todd Steiner sought enforcement of the statute in the district court. Earth Island Institute is a non-profit corporation devoted to the conservation of the world's marine and terrestrial ecosystems. It established a Sea Turtle Restoration Project in 1989, in order to protect endangered species of sea turtles. Appellant Todd Steiner is the director of the Sea Turtle Restoration Project. Earth Island and Steiner brought suit against the Secretary of State, the Secretary of Commerce, the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs, and the Assistant Administrator of the National Marine Fisheries Service.

Plaintiffs alleged that defendants did not properly certify that foreign nations have regulatory programs that comply with the Act, as required by section 609(b). Plaintiffs alleged further that defendants had not banned the importation of shrimp and shrimp products from nations whose fishing technologies continue to harm sea turtles. Plaintiffs also alleged that defendants did not initiate treaty negotiations with foreign governments to protect sea turtles, as required by section 609(a) of the Act.

The district court ruled that it did not have jurisdiction over the section 609(b) claims because those claims involved "embargoes" or "quantitative restrictions" on the importation of products into the United States. Such matters fall within the exclusive jurisdiction of the United States Court of International Trade ("CIT"), under 28 U.S.C. Secs. 1581(i)(3) and (4). The district court ruled that it could not adjudicate the section 609(a) claims because it lacked subject matter jurisdiction: "The claims raise issues relating to the foreign affairs function, which rests within the exclusive province of the Executive Branch."

We affirm because we conclude that exclusive jurisdiction lies with the CIT on the section 609(b) claim, and that section 609(a) violates the separation of powers. Section 609(b)--District Court or Court of International

Trade Jurisdiction?

The CIT was created in the Customs Courts Act of 1980, as the successor to the Customs Court. Pub.L. No. 96-417, 94 Stat. 1727 (1980). The CIT is a court of the United States for all purposes of Title 28. 28 U.S.C. Sec. 451. Under the 1980 Act, the CIT retains the jurisdiction of the prior Customs Court, which had exclusive jurisdiction over a wide range of trade matters. Section 1581(i) of the 1980 Act also expanded the jurisdiction of the CIT beyond that of the earlier Customs Court. ² In this case, the district court ruled that the CIT had exclusive jurisdiction under Sec. 1581(i)(3), which gives the CIT exclusive jurisdiction over "embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety." The Supreme Court has addressed the scope of the jurisdiction of the CIT under Sec. 1581(i) in K Mart Corp. v. Cartier, Inc., 485 U.S. 176, 108 S.Ct. 950, 99 L.Ed.2d 151 (1988). We hold that under K Mart, the CIT has exclusive jurisdiction over this lawsuit.

In K Mart, the Coalition to Preserve the Integrity of American Trademarks, a private association of United States trademark owners, filed a lawsuit in federal district court to challenge a regulation by the Secretary of the Treasury that permitted the importation of gray-market goods. Gray-market goods are foreign-manufactured goods bearing a U.S. trademark that are imported without the consent of the trademark owner. Plaintiffs sought a declaration that the regulation, which allowed exceptions to the ban on gray-market imports, was invalid. Plaintiffs also sought an injunction against enforcement of the regulation under section 526 of the Tariff Act, 19 U.S.C. Sec. 1526. The defendants argued that the CIT had exclusive jurisdiction over the lawsuit. The district court retained jurisdiction, and the D.C. Circuit affirmed. Coalition to Preserve the Integrity of American Trademarks v. United States, 790 F.2d 903, 907 (D.C.Cir.1986). The Supreme Court agreed that the CIT did not have jurisdiction over the case, because there was no "embargo" within the meaning of Sec. 1581(i)(3).

Appellants make two arguments under K Mart. First, they argue that the CIT does not have jurisdiction because the ban on shrimp imports is an environmental and not a trade matter, and as such is beyond the CIT's expertise. Second, they argue that the ban is not an "embargo" under the Supreme Court's definition of embargo in K Mart.

However, appellants misinterpret K Mart on both counts. In K Mart, the Supreme Court rejected the D.C. Circuit's reasoning that Sec. 1581(i)(3) refers only to embargoes arising out of trade policy. The Court gave an expansive interpretation of the scope of CIT jurisdiction by ruling that under Sec. 1581(i) "trade policy is not the sole, nor perhaps even the primary, purpose served by embargoes." K Mart, 485 U.S. at 184, 108 S.Ct. at 956. The Supreme Court reasoned that embargoes are imposed for a broad range of purposes, including public health, safety, morality, foreign affairs interests, law enforcement, and ecology. The Court expressly cited a regulation that prohibits the importation of sea otters as an example of an embargo in the field of ecology, over which the CIT would have exclusive jurisdiction. 19 C.F.R. Sec. 12.60 (1987). ³ The similarity between that ban on sea otters, and the ban on shrimp products in this case, undermines appellants' argument that the subject matter of this lawsuit is beyond the expertise of the CIT. The prohibitions on shrimp importation for environmental protection in this case clearly fall within the range of CIT jurisdiction identified by the Supreme Court in K Mart.

Second, appellants' argument that the ban on shrimp imports is not an embargo also fails. Appellants describe the ban on shrimp products as an import restriction, or as a condition precedent to the importation of shrimp products, and therefore not an embargo within the meaning of section 1581(i)(3). However, they misinterpret K Mart's definition of embargo. The Supreme Court ruled that there was no embargo in K Mart because there was no governmental ban on importation. Instead, private parties sought to enforce a private right with governmental assistance. The trademark owners asked the United States to impose a ban on foreign-manufactured goods. Those private parties were "enlist[ing] the Government's aid in restricting the quantity of imports in order to enforce a private right." Id. at 185, 108 S.Ct. at 957. Thus, there was no "embargo."

By contrast, here there is clearly a governmental ban that meets the K Mart definition of embargo: "The ordinary meaning of 'embargo,' and the meaning that Congress apparently adopted in the statutory language 'embargoes or other quantitative restrictions,' is a governmentally imposed quantitative restriction--of zero--on the importation of merchandise." Id. This ban on the importation of shrimp products does not arise from the action of private parties, but is clearly a governmental embargo within the meaning of K Mart.

The other authority cited by appellants does not compel a different outcome. Sneaker Circus, Inc. v. Carter, 566 F.2d 396 (2d Cir.1977), was decided before Sec. 1581(i) expanded the jurisdiction of the CIT. Moreover, in Sneaker Circus, the Second Circuit ruled that the district court had jurisdiction to hear plaintiffs' challenge to U.S. trade agreements with foreign nations because the dispute would never be ripe for adjudication in the Customs Court. It based this belief on the assumption that the effective enforcement of the trade agreements abroad would obviate the need for parties to...