Hopson v. Kreps
| Decision Date | 11 January 1979 |
| Docket Number | No. A78-184 Civil.,A78-184 Civil. |
| Citation | 462 F. Supp. 1374 |
| Parties | Eben HOPSON, Sr., Lloyd Ahvakana, and Elijah Rock, Individually and on behalf of all others similarly situated, Plaintiffs, v. Juanita KREPS, Secretary of Commerce, Richard Frank, Administrator, National Oceanic and Atmospheric Administration, Terry Leitzell, Assistant Administrator for Fisheries, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, and United States of America, Defendants. |
| Court | U.S. District Court — District of Alaska |
Stephen DeLisio, of Merdes, Schaible, Staley & Delisio, Inc., Anchorage, Alaska, Charles A. Goldmark, William H. Block, Wickwire, Lewis, Goldmark, Dystel & Schorr, Seattle, Wash., for plaintiffs.
Alexander O. Bryner, U. S. Atty., Anchorage, Alaska, Margaret Strand, Dept. of Justice, Washington, D.C., for defendants.
Joel T. Thomas, Nat. Wildlife Federation, Washington, D.C., amicus curiae.
THIS CAUSE comes before the court on cross motions for partial summary judgment. The issue presented by these motions is whether the 1946 International Convention for the Regulation of Whaling, 62 Stat. 1716, (1946 Convention), and the Whaling Convention Act of 1949, 16 U.S.C. §§ 916-916l (1976) authorize the regulation of subsistence whaling by Native Alaskans. This case presents complex issues involving the foreign policy of the United States, the interpretation of an international treaty, the fate of an endangered animal that has caught the attention of the world, and the future of an ancient culture that is the epitome of traditional Alaska. This court notes the improbability that any judicial order can "solve" such a troubling and complex dilemma. Nevertheless, the court has been called upon to rule, and such follows hereafter.
In 1946, under United States leadership, fifteen nations1 entered into an international treaty for the purpose of "safeguarding for future generations the great natural resources represented by the whale stocks." Preamble to the 1946 Convention, 62 Stat. at 1716. Previous whaling treaties had failed to reestablish the decimated whale populations, and did not lend themselves to the establishment of seasonal quotas for the taking of whales. This, for the reason that, to establish a new quota, the treaties had to be amended by a formal protocol. See 1931 Geneva Convention on the Regulation of Whaling, 49 Stat. 3079, and the International Agreement for the Regulation of Whaling, June 8, 1937, 52 Stat. 1460. See generally Scarff, Whale Management at 343-58. A more flexible system for establishing quotas was created by the 1946 Convention through the organization of the International Whaling Commission which has the power to amend from time to time a Schedule fixing:
(a) protected and unprotected species; (b) open and closed seasons; (c) open and closed waters, including the designation of sanctuary areas; (d) size limits for each species; (e) time, methods, and intensity of whaling (including the maximum catch of whales to be taken in any one season); (f) types and specifications of gear and apparatus and appliances which may be used; (g) methods of measurement; and (h) catch returns and other statistical and biological records.
Article V, 1946 Convention. 62 Stat. at 1718-19.
The 1946 Convention and necessarily the jurisdiction of the Whaling Commission is limited to "factory ships, land stations, and whale catchers under the jurisdiction of the Contracting Governments, and to all waters in which whaling is prosecuted by such factory ships, land stations, and whale catchers." Article I, 1946 Convention, 62 Stat. at 1717. A Contracting Government can prevent an amendment to the Schedule from applying to it by presenting an objection to the International Commission within ninety days after formal notification of the amendment. Article V, 1946 Convention, 62 Stat. at 1719. The Schedule is implemented in the United States by the Whaling Convention Act of 1949, 16 U.S.C. § 916-916l (1976), which authorizes and directs the Secretary of Commerce to adopt "such regulations as may be necessary to carry out the purposes and the objectives of the convention, the regulations of the Commission and this chapter." 16 U.S.C. § 916j.2
The bowhead whale (known to the scientists as Balaena mysticetus) is one of the most seriously endangered whale species.3 From the first Schedule adopted by the Contracting Governments at the Conference that wrote the 1946 Convention, bowheads (also called right whales) have been a completely protected species, except for an exemption for subsistence hunting.4 Beginning in 1973 the Scientific Committee of the Commission began to show special concern for the bowhead and in June, 1977, recommended that all bowhead whaling, including subsistence hunting, be prohibited. The Commission accepted the recommendation of the Scientific Committee and voted 17 to 0, with the United States abstaining, to ban all bowhead whaling beginning in 1978.5 In the ninety days subsequent to the official notification in July, 1977, the government prepared an environmental impact statement concerning whether the United States should file an objection to the Schedule amendment. After extensive comment by Eskimos, Alaskans, scientists, and U. S. officials, the Secretary of State announced that the United States would not object because such an objection would interfere with long-term efforts of the United States to bring a halt to the commercial whaling that has severely reduced all whale populations, including the bowhead. The United States promised to seek reconsideration of the ban at the next Commission meeting. The position of the United States was, and still is, that the Commission must consider cultural and subsistence needs in establishing quotas for such whaling.
The Eskimo whalers filed suit in Washington, D.C., in an attempt to obtain a preliminary injunction requiring the Secretary of State to file an objection to the Schedule change. The Court of Appeals for the D.C. Circuit vacated a preliminary injunction issued by the D.C. District Court. The Circuit Court held that an extraordinary showing on the merits would have to be made when important United States interests in foreign affairs, such as the U. S. policy in the Whaling Commission, would be irreparably harmed by the issuance of an injunction. The Circuit Court found that the plaintiffs had failed to make such a showing. Adams v. Vance, 187 U.S.App. D.C. 41, 46, 570 F.2d 950, 955 (1977).
Since the decision not to object to the Schedule, the American delegation has succeeded in obtaining a limited quota for Alaskan Natives. In December, 1977, the Commission modified its complete ban to permit the Eskimo during 1978 to land 12 whales, or strike 18, whichever came first.6 At the June, 1978, meeting the 1978 quota was raised to 14 whales landed, or 20 struck.7 At the December, 1978, meeting, the quota for 1979 was raised again to 18 whales landed or 27 struck.8
After the June, 1978, meeting of the International Commission, the Eskimo whalers filed suit in this court alleging that the regulations promulgated by the Secretary of Commerce to implement the Schedule were not valid because the International Commission has no jurisdiction over Native subsistence whaling and therefore the Whaling Convention Act of 1949 does not authorize the regulations in question. The whalers' complaint also alleges that the United States has violated its trust responsibility toward Native Alaskans by issuing the regulations and that the regulations violate the Marine Mammal Protection Act, 16 U.S.C. § 1361-1407 (1976), and the Endangered Species Act, 16 U.S.C. §§ 1531-43 (1976). The cross motions before the court at this time raise only the issue of the first claim, that concerning the 1949 Whaling Convention Act. The question here can be reduced to whether the Eskimos' small boats fit within the 1946 Convention's and the 1949 Act's definition of "whale catcher." Article II of the Convention defines whale catcher as "a ship used for the purpose of hunting, taking, towing, holding on to, or scouting for whales." 62 Stat. at 1717. The 1949 Act uses the term "vessel" instead of "ship" in its definition of "whale catcher". "Vessel" under the 1949 Act is defined broadly as "every kind, type, or description of water craft or contrivance subject to the jurisdiction of the United States used, or capable of being used, as a means of transportation." 16 U.S.C. § 916(e), (h).
The plaintiffs emphasize that they and their ancestors have hunted the bowhead for thousands of years, and whale products remain an essential source of food for many of them. The government concedes the importance of whaling to the plaintiffs and their villages, but contends that the interpretation of 1946 Convention embraced by the United States is so intertwined with foreign policy considerations that this court has no jurisdiction to consider the validity of the regulations that implement the Commission's Schedule. Before the court examines the applicability of the foreign relations aspect of the "political question" doctrine, the relationship of United States foreign policy and the issue before the court must be examined.
The United States decision to accept the International Whaling Commission's decision that Native subsistence is within the jurisdiction of the Commission was based on the diplomatic problems that would be created if the United States opposed the only action of the Whaling Commission in recent years to have an impact in the United States. Ever since the 1972 United Nations Conference on the Human Environment at which a United States resolution to protect whales won overwhelming approval, the United States has taken a leadership role in international efforts to conserve whales.9 John D. Negroponte, Deputy Assistant Secretary of State for Oceans...
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