Humane Soc. of US v. Brown, Slip Op. 96-38. Court No. 95-05-00631.

• Citation: 920 F. Supp. 178
• Decision Date: 16 February 1996
• Docket Number: Slip Op. 96-38. Court No. 95-05-00631.
• Parties: The HUMANE SOCIETY OF the UNITED STATES, Humane Society International, Defenders of Wildlife, Royal Society for the Prevention of Cruelty to Animals, Whale and Dolphin Conservation Society, and Earth Island Institute, Plaintiffs, v. Ron BROWN, Secretary of Commerce, and Warren Christopher, Secretary of State, Defendants.
• Court: U.S. Court of International Trade

920 F. Supp. 178

The HUMANE SOCIETY OF the UNITED STATES, Humane Society International, Defenders of Wildlife, Royal Society for the Prevention of Cruelty to Animals, Whale and Dolphin Conservation Society, and Earth Island Institute, Plaintiffs, v. Ron BROWN, Secretary of Commerce, and Warren Christopher, Secretary of State, Defendants.

Slip Op. 96-38. Court No. 95-05-00631.

United States Court of International Trade.

February 16, 1996.

Sierra Club Legal Defense Fund, Patti A. Goldman, for plaintiffs.

Frank W. Hunger, Washington, DC, Assistant Attorney General; Lois J. Schiffer, Washington, DC, Acting Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, Jeffrey M. Telep, Washington, DC, and Environment & Natural Resources Division, Eileen Sobeck, Washington, DC, and Mark A. Brown, U.S. Department of Justice; and Office of the Legal Adviser, U.S. Department of State, David Balton, Washington, DC, and Office of General Counsel, National Oceanic and Atmospheric Administration, Margaret F. Hayes, of counsel, for defendants.

Opinion & Order

AQUILINO, Judge:

This court's slip op. 95-148, familiarity with which is presumed and which is reported at 19 CIT ___, 901 F.Supp. 338 (1995), granted in part and denied in part defendants' motion to dismiss the complaint, denied plaintiffs' application for immediate equitable relief, and granted leave to conduct limited discovery. Among other things, that opinion shows that the defendants are being sued in their official capacities as U.S. Secretary of Commerce and Secretary of State in regard to the High Seas Driftnet Fisheries Enforcement Act, Pub.L. No. 102-582, 106 Stat. 4900 (Nov. 2, 1992), section 101 of which provides:

(a) Denial of port privileges

(1) Publication of list

Not later than 30 days after November 2, 1992, and periodically thereafter, the Secretary of Commerce, in consultation with the Secretary of State, shall publish a list of nations whose nationals or vessels conduct large-scale driftnet fishing beyond the exclusive economic zone of any nation.

(2) Denial of port privileges

The Secretary of the Treasury shall, in accordance with recognized principles of international law ?€”

(A) withhold or revoke the clearance required by section 91 of the Appendix to Title 46 for any large-scale driftnet fishing vessel that is documented under the laws of the United States or of a nation included on a list published under paragraph (1); and

(B) deny entry of that vessel to any place in the United States and to the navigable waters of the United States.

(3) Notification of nation

Before the publication of a list of nations under paragraph (1), the Secretary of State shall notify each nation included on that list regarding ?€”

(A) the effect of that publication on port privileges of vessels of that nation under paragraph (1); and

(B) any sanctions or requirements, under this Act or any other law, that may be imposed on that nation if nationals or vessels of that nation continue to conduct large-scale driftnet fishing beyond the exclusive economic zone of any nation after December 31, 1992.

(b) Sanctions

(1) Identifications

(A) Initial identifications

Not later than January 10, 1993, the Secretary of Commerce shall ?€”

(i) identify each nation whose nationals or vessels are conducting large-scale driftnet fishing beyond the exclusive economic zone of any nation; and

(ii) Notify the President and that nation of the identification under clause (i).

(B) Additional identifications

At any time after January 10, 1993, whenever the Secretary of Commerce has reason to believe that the nationals or vessels of any nation are conducting large-scale driftnet fishing beyond the exclusive economic zone of any nation, the Secretary of Commerce shall ?€”

(i) identify that nation; and

(ii) notify the President and that nation of the identification under clause (i).

(2) Consultations

Not later than 30 days after a nation is identified under paragraph (1)(B), the President shall enter into consultations with the government of that nation for the purpose of obtaining an agreement that will effect the immediate termination of large-scale driftnet fishing by the nationals or vessels of that nation beyond the exclusive economic zone of any nation.

(3) Prohibition on imports of fish and fish products and sport fishing equipment

(A) Prohibition

The President ?€” (i) upon receipt of notification of the identification of a nation under paragraph (1)(A); or

(ii) if the consultations with the government of a nation under paragraph (2) are not satisfactorily concluded within ninety days, shall direct the Secretary of the Treasury to prohibit the importation into the United States of fish and fish products and sport fishing equipment (as that term is defined in section 4162 of Title 26) from that nation.

(B) Implementation of prohibition

With respect to an import prohibition directed under subparagraph (A), the Secretary of the Treasury shall implement such prohibition not later than the date that is forty-five days after the date on which the Secretary has received the direction from the President.

(C) Public notice of prohibition

Before the effective date of any import prohibition under this paragraph, the Secretary of the Treasury shall provide public notice of the impending prohibition.

(4) Additional economic sanctions

(A) Determination of effectiveness of sanctions

Not later than six months after the date the Secretary of Commerce identifies a nation under paragraph (1), the Secretary shall determine whether ?€”

(i) any prohibition established under paragraph (3) is insufficient to cause that nation to terminate large-scale driftnet fishing conducted by its nationals and vessels beyond the exclusive economic zone of any nation; or

(ii) that nation has retaliated against the United States as a result of that prohibition.

(B) Certification

The Secretary of Commerce shall certify to the President each affirmative determination under subparagraph (A) with respect to a nation.

(C) Effect of certification

Certification by the Secretary of Commerce under subparagraph (B) is deemed to be a certification under ... 22 U.S.C. ? 1978(a) , as amended by this Act.

16 U.S.C. ? 1826a. Among other statutes, this Enforcement Act amended Title 22, U.S.C., governing Foreign Relations and Intercourse, in particular, the so-called Pelly Amendment to the Fishermen's Protective Act of 1967, expanding its purview from "fish products" to "any products from the offending country". Compare 22 U.S.C. ? 1978 (1988) with Pub.L. No. 102-582, ? 201, 106 Stat. at 4904 and H.R.Rep. 262, Part 1, 102d Cong., 2d Sess. 11 (Oct. 22, 1992).

The primary issues unresolved by slip op. 95-148 are (1) whether or not there is reason to believe that nationals or vessels of Italy are conducting large-scale driftnet fishing¹ beyond the exclusive economic zone of any nation and (2) whether or not the plaintiffs have the requisite standing under Article III of the Constitution to obtain a declaration adjudging defendant Brown in violation of 16 U.S.C. ? 1826a(b)(1)(B), supra, and a writ of mandamus, directing him to implicate Italy formally thereunder.

The plaintiffs address these issues in a motion for summary judgment pursuant to CIT Rule 56, while the defendants adhere to the position that judgment should enter for them upon the administrative record as set forth in their motion pursuant to CIT Rule 56.1. Either way, the court has jurisdiction under 28 U.S.C. ? 1581(i)(3) and (4). See, e.g., Earth Island Institute v. Christopher, 6 F.3d 648 (9th Cir.1993), and 19 CIT ___, 913 F.Supp. 559, Slip Op. 95-208 (Dec. 29, 1995).

I

The defendants opposed discovery. However, at the time slip op. 95-148 issued, the court was unable to conclude that the documents which they had filed with the Clerk's office amounted to more than information relevant to the causes of action alleged. Nothing appeared to be even arguably "the contested determination and the findings or report upon which such determination was based" or the "reported hearings or conferences conducted by the agency" contemplated by 28 U.S.C. ? 2635(d)(1), CIT Rule 72(a) and the Administrative Procedure Act. 19 CIT at ___, 901 F.Supp. at 350. Whereupon, as indicated, the plaintiffs were granted leave to conduct discovery ?€” "at least for the limited purpose of determining the actual nature and extent of defendants' action(s) and record thereof." 19 CIT at ___, 901 F.Supp. at 352. That is, defendants' motion for a protective order as against the one request to produce documents, three requests (to defendant Brown) for admissions and the ten written interrogatories which had been served on them was denied.

As just stated (and to be discussed hereinafter), documents were and have been produced. The requests for admissions were as follows:

1 On or before January 10, 1993, the Secretary of Commerce did not identify Italy as a nation whose nationals or vessels are conducting (or were then conducting) large-scale driftnet fishing beyond the exclusive economic zone of any nation.

2 Since January 10, 1993, the Secretary of Commerce has not identified Italy as a nation whose nationals or vessels are conducting large-scale driftnet fishing beyond the exclusive economic zone of any nation.

3 The Secretary of Commerce has identified no nations under the High Seas Driftnet Fisheries Enforcement Act of 1992 as nations whose nationals or vessels are conducting large-scale driftnet fishing beyond the exclusive economic zone of any nations.

Defendant Brown has now admitted each. See Plaintiffs' Exhibit 80. The few interrogatories presented to the Department of State, seeking information basic to this action, have been responded to en masse as follows:

Pursuant to Rule 33(c) of the Rules of the United States Court of International Trade, defendant refers plaintiffs to the administrative record filed with the Court in this action and the documents

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