Jensen v. National Marine Fisheries Service (NOAA)
| Decision Date | 11 March 1975 |
| Docket Number | No. 73-3125,73-3125 |
| Citation | 512 F.2d 1189 |
| Parties | Bjorn JENSEN et al., Plaintiffs-Appellants, v. The NATIONAL MARINE FISHERIES SERVICE (NOAA) et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Douglas M. Fryer (argued), Seattle, Wash., for plaintiffs-appellants.
Charles F. Mansfield, Asst. U. S. Atty. (argued), Washington, D.C., for defendants-appellees.
Before TRASK and CHOY, Circuit Judges, and MURRAY, * District Judge.
This is an appeal from an order of the district court dismissing appellants' complaint for lack of jurisdiction. The action below was for a declaratory judgment and an injunction against the enforcement of a regulation of the International Pacific Halibut Commission (Commission), and of the Northern Pacific Halibut Act of 1937, 16 U.S.C. §§ 772b, 772d, 772e, which provide criminal penalties for the violation of the Commission regulations. Appellees are National Marine Fisheries Service, and Philip Roedel, Director, who seek to enforce the regulations, and the United States.
Appellants are owners and operators of fishing boats who fish in the Pacific Ocean by means of otter trawls. They catch fish by dragging nets along the ocean floor. They complain of a regulation enacted by the Commission which prohibits them from keeping halibut which they catch in their nets incidentally to other fish upon which they concentrate their efforts. The regulation requires them to return the halibut to the sea after they are caught in the nets. In 1971 the scientific staff of the Commission recommended that the trawlers be permitted to keep a certain percentage of the halibut taken in specific areas. The Commission did not adopt the staff's view and reenacted the regulation. This suit followed.
The Commission was created by a treaty, the Convention Between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea March 2, 1953, (1954) 5 U.S.T. 5, T.I.A.S. No. 2900. The treaty provides that the Commission will enact regulations to preserve the fishery with the approval of the President of the United States and the Governor General of Canada. The power of the President to approve the regulations was delegated to the Secretary of State by Executive Order No. 11467, May 1, 1969, 34 Fed.Reg. 7271. In 1972 the Commission reenacted the regulation here complained of, and it was approve by the Secretary.
In the district court appellants predicated their claim of jurisdiction on the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 704, and on 28 U.S.C. § 1346 (Tucker Act). On appeal they assert jurisdiction only under the APA. The bases of appellants' arguments are: (1) that the Secretary's action in approving the regulation constituted agency action within the meaning of 5 U.S.C. §§ 702, 704, and therefore is reviewable in federal court; and (2) that the action of Congress in passing 16 U.S.C. § 772b, 772d and 772e was an unconstitutional delegation of legislative power to the President because it provided no guidelines concerning the approval of regulations adopted by the Commission.
For the purposes of this appeal the Secretary's actions are those of the President, and therefore by the terms of the APA the approval of the regulation at issue here is not reviewable. The APA provides: "This chapter (APA) applies, according to the provisions thereof, except to the extent that ... (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701(a). Since presidential action in the field of foreign affairs is committed to presidential discretion by law, Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948); United States v. Curtiss-Wright Corp., 299 U.S. 304, 319, 57 S.Ct. 216, 81 L.Ed. 255 (1936), it follows that the APA does not apply to the action of the Secretary in approving the regulation here challenged. Indeed, the Supreme Court has held that such decisions are political in nature and therefore do not present a justiciable "case or controversy" within the meaning of Article III of the Constitution, Chicago & Southern Air Lines, Inc., supra, 333...
To continue reading
Request your trial
-
Boating Industry Associations v. Marshall
...violation of the regulation, they have failed to establish the existence of a "case or controversy." Jensen v. National Marine Fisheries Service (NOAA), 512 F.2d 1189, 1191 (9th Cir. 1975), Citing United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 At this point the a......
-
San Diego County Gun Rights Committee v. Reno
...under the Crime Control Act, which is clearly insufficient to establish a "case or controversy." Jensen v. National Marine Fisheries Serv. (NOAA), 512 F.2d 1189, 1191 (9th Cir.1975); Western Mining Council, 643 F.2d at c. Lack of Any History of Prosecutions A final weakness in plaintiffs' t......
-
Western Min. Council v. Watt
...plaintiffs, is not sufficient to create a "case or controversy" within the meaning of Article III, Jensen v. National Marine Fisheries Service (NOAA), 512 F.2d 1189, 1191 (9th Cir. 1975), and is thus insufficient to satisfy the "actual controversy" requirement of the Declaratory Judgment Ac......
-
Detroit Int'l Bridge Co. v. Gov't of Can.
...Asylum Seekers v. Dep't of State, Bureau of Consular Affairs, 104 F.3d 1349, 1353 (D.C.Cir.1997); Jensen v. Nat'l Marine Fisheries Serv., 512 F.2d 1189, 1191 (9th Cir.1975); 5 U.S.C. § 701(a)(2)(the APA applies except to the extent that "agency action is committed to agency discretion by la......
-
Separation of powers and federal land management: enforcing the direction of the president under the Antiquities Act.
...Plaintiff's Motion for Reconsideration, supra note 11, at 5 (No. CV 08-1472-PHX-MHM) (relying on Jensen v. Nat'l Marine Fisheries Serv., 512 F.2d 1189 (9th Cir. 1975); United States v. Decker, 600 F.2d 733 (9th Cir. 1979); and Mountain States Legal Found. v. Bush, 306 F.3d 1132; and arguing......