Turtle Island Restoration Network v. Mallett
| Decision Date | 19 July 2000 |
| Docket Number | Court No. 98-09-02818.,Slip Op. 00-85. |
| Parties | TURTLE ISLAND RESTORATION NETWORK, A California Nonprofit Corporation; Todd Steiner; the American Society for the Prevention of Cruelty to Animals, A New York Non-profit Corporation; the Humane Society of the United States, A Delaware Nonprofit Corporation; and the Sierra Club, A California Nonprofit Corporation, Plaintiffs, v. Robert L. MALLETT, Acting Secretary of Commerce; Madeleine Albright, Secretary of State; Lawrence H. Summers, Secretary of Treasury; David B. Sandalow, Assistant Secretary of State for the Bureau of Oceans and International Environmental and Scientific Affairs; Penelope D. Dalton, Assistant Administrator for Fisheries, National Marine Fisheries Service; and Alan P. Larson, Under Secretary of State for Economic, Business and Agricultural Affairs, Defendants, and National Fisheries Institute, Inc., Intervenor-Defendant. |
| Court | U.S. Court of International Trade |
David W. Ogden, Acting Assistant Attorney General, and Lois J. Schiffer, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division (Lucius B. Lau) and Environment and Natural Resources Division, Wildlife and Marine Resources Section (Jean E. Williams and Jane P. Davenport), U.S. Department of Justice; and Jay S. Johnson, Deputy General Counsel, National Oceanic and Atmospheric Administration, U.S. Department of Commerce; and Office of the Legal Advisor, U.S. Department of State (Violanda Botet), of counsel, for the defendants.
Garvey, Schubert & Barer (Eldon V.C. Greenberg), Washington, DC, for the intervenor-defendant.
The plaintiffs request that the court enter final judgment in conformity with its slip op. 99-32, filed herein sub nom. Earth Island Institute v. Daley1, and which hereby is incorporated by reference in this opinion. The plaintiffs also have interposed an application for award of attorneys' fees, costs and expenses pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.
The defendants and intervenor-defendant do not oppose entry of judgment, but the government does object to any award of fees etc.
As discussed hereinafter, an application made pursuant to EAJA requires the court to revisit the merits of the underlying case. Here, the primary object of plaintiffs' Complaint for Declaratory Judgment, Review of Agency Action, Mandamus and Injunctive Relief has been the Department of State's Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Sea Turtles in Shrimp Trawl Fishing Operations2, which announced that the Department was reinstating
its determination that the harvesting of shrimp with TEDs does not adversely affect sea turtle species and that TED-caught shrimp is therefore not subject to the import prohibition created by Section 609(b)—(1).... [H]owever, the Department ... has decided to establish several conditions and incentives relating to the importation of such shrimp that are intended to address concerns that have been raised about the effect of this determination on the conservation of sea turtle species.3
Those concerns were stated to be that foreign harvesters will fraudulently claim that shrimp have been harvested with TEDs, that foreign nations which have established regulatory programs comparable to the U.S. program will abandon or limit them so that only trawlers harvesting shrimp for export to the United States will actually employ TEDs, and that other nations which may be considering the adoption of such a program may opt instead for equipping only those vessels trawling for shrimp for the American market. See 63 Fed.Reg. at 46,095.
Following publication in Geneva of the WTO Appellate Body's report, and just before this court's slip op. 99-32 was handed down, the Department of State issued its Notice of Proposed Revisions to Guidelines for the Implementation of Section 609 of Public Law 101-162 Relating to the Protection of Sea Turtles in Shrimp Trawl Fishing Operations4, advising, among other things, that on
November 25, 1998, the United States announced its intention to implement the recommendations and rulings of the DSB in a manner which is consistent not only with U.S. WTO obligations, but also with the firm commitment of the United States to the protection of threatened and endangered species, including sea turtles.
64 Fed.Reg. at 14,481. This notice then summarized the findings of the Appellate Body report and offered responses on the part of the United States as follows:
(1) WTO Finding: While Section 609 requires as a condition of certification that foreign programs for the protection of sea turtles in the course of shrimp trawl fishing be comparable to the U.S. program, the practice of the Department of State in making certification decisions was to require foreign programs to be essentially the same as the U.S. program. In assessing foreign programs, the Department ... should be more flexible in making such determinations and, in particular, should take into consideration different conditions that may exist in the territories of those other nations.
Analysis: ... [T]he proposed revisions to the guidelines make clear that the Department of State will fully consider any evidence that another nation may present that its program to protect sea turtles in the course of shrimp trawl fishing is comparable to the U.S. program. In reviewing such evidence, the Department will take into account any demonstrated differences in foreign shrimp fishing conditions, to the extent that such differences may affect the extent to which sea turtles are subject to capture and drowning in the commercial shrimp trawl fisheries. The Department will also take such differences into account in making related determinations under Section 609.
(2) WTO Finding: The certification process under Section 609 is neither transparent nor predictable and denies to exporting nations basic fairness and due process. There is no formal opportunity for an applicant nation to be heard or to respond to arguments against it. There is no formal written, reasoned decision. But for notice in the Federal Register, nations are not notified of decisions specifically. There is no procedure for review of, or appeal from, a denial of certification.
Analysis: ... [T]he proposed revisions to the guidelines institute a broad range of procedural changes in the manner in which the Department of State will make certification decisions under Section 609. The intention is to create a more transparent and predictable process for reviewing foreign programs and for making decisions on certifications and other related matters. The proposed revisions ensure that the governments of harvesting nations will be notified on a timely basis of all pending and final decisions and are provided a meaningful opportunity to be heard and to present any additional information relevant to the certification decision. The governments of harvesting nations that are not granted a certification shall receive a full explanation of the reasons that the certification was denied. Steps that the government must take to receive a certification in the future shall be clearly identified....
(3) WTO Finding: At the time the WTO complaint arose, the United States did not permit imports of shrimp harvested by vessels using TEDs comparable in effectiveness to those used in the United States, unless the harvesting nation was certified pursuant to Section 609. In other words, shrimp caught using methods identical to those employed in the United States had been excluded from the United States market solely because they had been caught in waters of uncertified nations.
Analysis: ... [T]he Department of State modified its implementing Guidelines on August 28, 1998 to allow the importation of shrimp harvested by vessels using TEDs, even if the exporting nation is not certified pursuant to Section 609. This policy had, in fact, been in place as of April 19, 1996, but had been overturned by a domestic court ruling that was subsequently vacated. The provisions of the August 28, 1998 Guidelines pertaining to the importation of such shrimp remain in effect.
(4) WTO Finding: The United States failed to engage the nations that brought the complaint, as well as other WTO Members exporting shrimp to the United States, in serious across-the-board negotiations, apart from negotiations on the Inter-American Convention for the Protection and Conservation of Sea Turtles, for the purpose of concluding agreements to conserve sea turtles before enforcing the import prohibition on those other Members.
Analysis: As early as 1996, the United States proposed to governments in the Indian Ocean region the negotiation of an agreement to protect sea turtles in that region, but received no positive response. In 1998, even before the WTO Appellate Body issued its report, the United States reiterated its desire to enter into such negotiations with affected governments, including those that had brought the WTO complaint. During the summer of 1998, the United States informally approached several governments in the Indian Ocean region, as well as numerous non-governmental organizations, in an effort to get such negotiations underway. On October 14, 1998, following the issuance of the Appellate Body report, but before its adoption by the DSB, the Department of State formally renewed this proposal to high-level representatives of the embassies of the four complainants in Washington, D.C., and delivered the same message to a wide range of nations in the Indian Ocean region through ... embassies abroad. In each case, the United States presented a list of "elements" that ... could form the basis of such an agreement ... [and] made clear the willingness of the United States to support the negotiating process in a number...
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