DISPOSITION:
[***1]
Defendants' motion for modification of deadline established by Congress
denied.
COUNSEL:
Legal
Strategies Group (Joshua R. Floum) for the plaintiffs.
Frank W.
Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial
Litigation Branch, Civil Division (Jeffrey M. Telep) and Environment &
Natural Resources Division (Eileen Sobeck and Christiana P. Perry), U.S.
Department of Justice; and Office of the Legal Adviser, U.S. Department of
State (David Balton), Office of General Counsel, National Oceanic and
Atmospheric Administration (Jason Patlis) and Office of the Chief Counsel,
U.S. Customs Service (Lou Brenner, Jr.), of counsel, for the defendants.
Garvey,
Schubert & Barer (Eldon V.C. Greenberg) for the intervenor-defendant.
Graham &
James LLP (Michael P. Daniels and Andrea Fekkes Dynes) for the government of
El Salvador, amicus curiae.
JUDGES:
Thomas J.
Aquilino, Jr., Judge
OPINION
BY:
Thomas J.
Aquilino, Jr.
OPINION:
[**617]
[*460] Memorandum & Order
AQUILINO, Judge: In 1989, following years of mounting concern
over possible extinction of sea turtles, Congress enacted Pub.L. No.
101-162, § 609, 103 Stat. 988, 1037-38, 16 U.S.C. § 1537 note, part
(b) (1) of which provides that the [***2] importation into the United
States of shrimp or products from shrimp which have been harvested with
commercial fishing technology which may affect adversely endangered species
of sea turtles "shall be prohibited not later than May 1, 1991, except as
provided in paragraph (2)", to wit:
(2) CERTIFICATION PROCEDURE. -- The ban on importation of
shrimp or products from shrimp pursuant to paragraph (1) shall not apply if
the President shall determine and certify to the Congress not later than May
1, 1991, and annually thereafter that--
(A) the government of the harvesting nation has provided
documentary evidence of the adoption of a regulatory program governing the
incidental taking of such sea turtles in the course of such harvesting that
is comparable to that of the United States; and
[*461] (B) the average rate of that incidental taking by
the vessels of the harvesting nation is comparable to the average rate of
incidental taking of sea turtles by United States vessels in the course of
such harvesting; or
(C) the particular fishing environment of the harvesting
nation does not pose a threat of the incidental taking of such sea turtles
in the course of such harvesting.
[***3]
In slip op.
95-208, 19 C.I.T. , , 913 F. Supp. 559, 580 (1995), appeal Nos.
96-1253, -1254 docketed (Fed. Cir. March 12, 1996), familiarity with which
is presumed, this court found the foregoing statute unambiguous and
therefore confirmed the annual congressional deadline of May 1st for the
defendants to prohibit
the
importation of shrimp or products of shrimp wherever harvested in the wild
with commercial fishing technology which may affect adversely those species
of sea turtles the conservation of which is the subject of regulations
promulgated by the Secretary of Commerce on June 29, 1987, 52 Fed.Reg.
24,244 ...
In handing
down this opinion on December 29, 1995, the court did not consider itself
at [**618] liberty to change this statutory date to January 1 or June 1 or
to some other date of arguable convenience to the parties.
I
Nonetheless, and also seemingly in spite of the one and a
half years' lead time originally afforded by Congress in the statute and the
five first days of May since then, as well as the aforesaid four months'
advance warning the timing of the court's decision entailed, come now the
defendants (and the intervenor-defendant) [***4] with a motion for
"modification" of that decision. It prays for an across-the-board,
additional one-year extension of time to prohibit importation of shrimp or
products from shrimp upon the condition Congress prescribed, supra, as well
as for expedited hearing and determination thereof.
Such a hearing has been held, and the paucity of evidence
offered in support of the motion enables this decision to be expeditious.
A
As filed initially, the motion was predicated upon
declarations by the Under Secretary of State for Economic, Business and
Agricultural Affairs and defendant Schmitten. The former confirms what the
court held unlawful in slip op. 95-208, namely, "the federal defendants
implemented Section 609 on the belief that Congress intended that law to
apply only to nations in the Wider Caribbean region." Declaration of Joan E.
Spero, para. 4, p. 3. The declarant also confirms what the record indicated,
Congress had recognized, and the court thus found in its decision, i.e.,
sea turtles
are a shared resource; they do not occur solely in waters under U.S.
jurisdiction, but rather migrate widely through waters under the
jurisdiction of many nations and on [***5] the high seas. Effective
[*462] protection of sea turtles can only result from cooperative action
among nations. That is why Section 609 calls for the negotiation of
international agreements to this end.
Id., para.
15. See, e.g., H. Fountain, Navigation Satellites Have Rival: the Sea
Turtle, N.Y. Times, March 11, 1996, at C4.
In this
regard,
based on all
presently available data, ... a majority of the nations of the world have at
least one of the relevant species of sea turtles in waters subject to their
jurisdiction as well as commercial shrimp trawling operations in those
waters. Of those, approximately 51 nations, including the 14 nations of the
Wider Caribbean region previously determined to be covered by Section 609,
have exported shrimp or shrimp products to the United States in recent
years. Approximately 60 additional nations have at least one of the relevant
species of sea turtles and commercial shrimp trawling operations, but have
not exported shrimp or shrimp products to the United States in recent years.
Declaration
of Joan E. Spero, para. 6, pp. 4-5. The Department of State is reported to
have
promptly
notified [***6] foreign nations of the Court Order through U.S. embassies
and consulates around the world ... [and to have] actively urged affected
nations to adopt, by May 1, 1996, programs governing the incidental taking
of sea turtles in the course of shrimp harvesting comparable to the U.S.
program.
8. As of March 6, 1996, 26 of the newly affected nations
(including ... seven Latin American nations) have responded in some fashion
as to make possible at least an initial prediction as to the likelihood of
their situation on May 1, 1996. I would summarize their responses as
follows:
. 15 have
indicated that they would not be able to have a comparable program in place
by May 1, 1996.
. 7 have
indicated that they would likely be able to have a comparable program in
place by May 1, 1996, provided the U.S. Government can assist them.
. 3 claim
either that they have no commercial shrimp trawl fishery or that no turtles
occur where their commercial shrimp trawl fishery takes place.
. 1 claims
already to have a comparable program.
The
remaining nations -- i.e., the large majority of the newly affected nations
-- have [**619] not responded in a way that allows us to [***7] predict
their future course on this matter.
Id., paras.
7, 8.
From this summary, Secretary Spero attempts to extrapolate
the following points, among others:
-- It is likely that many of the major shrimp exporting
nations will be unable to implement a comparable program by May 1, 1996.
Id., para. 9.
-- The defendants stand willing to assist nations in the
adoption and implementation of comparable programs. Id., para. 12.
[*463] -- Widespread embargoes would cause substantial harm
in at least three ways:
First, they could substantially impair the ability of the
U.S. government to secure protection of sea turtles as envisioned in section
609.
Second, the embargoes would disrupt a vast quantity of
international trade in shrimp.
Third, failure to postpone the deadline will cause serious
and long-lasting harm to overall U.S. foreign policy interests, particularly
to the promotion of liberalized trade through the progressive reduction of
non-tariff barriers. n1
n1 Declaration of Joan E. Spero, paras. 14, 19, 21. See also
id., paras. 14 passim, 15, 16, 17, 18, 19 passim, 20, 22 and 23. Defendant
Schmitten explains essentially how, as Director of the National Marine
Fisheries Service ("NMFS"), he has been
delegated primary responsibility under the Endangered Species
Act (ESA), 16 U.S.C. § 1531 et seq.., for implementation of that
statute with respect to species of sea turtles listed as endangered or
threatened, when they are in the marine environment. NMFS has also assisted
the U.S. Department of State ... in that agency's implementation of section
609 of Public Law 101-162 by providing biological information on sea turtle
distribution, and technical information and advice on fishing technologies,
including the use of turtle excluder devices (TEDs). NMFS has also engaged
in various activities relating to transfer of TED technology to foreign
countries.
[***8]
On its part, the intervenor-defendant National Fisheries
Institute, Inc. ("NFI") filed a declaration of its Vice President for
Government Relations, Richard E. Gutting, Jr., which attempts to estimate
the "impacts" of the court's decision on the supply of shrimp in the United
States, to calculate losses to the U.S. seafood industry and the consuming
public which could result from the imposition of embargoes on May 1, 1996,
and to assess the likely consequences of the court's order for sea turtles
in U.S. waters and abroad and for domestic shrimp fishers.
At first blush, the foregoing declarations were of sufficient
moment to cause the court to convene immediately, at which hearing the
defendants and intervenor-defendant were afforded an opportunity to present
evidence in support thereof. n2 They did not. Little was added to the few
facts already included in their scripted generalizations. Either they could
not or would not answer rudimentary questions seemingly relevant thereto.
For example, as quoted above, Secretary Spero implicates more than 100
nations, yet counsel refused to name even one at the hearing, or to provide
any acceptable legal basis for such refusal. See Tr. [***9] at 28-29. In
short, the hearing proved counterproductive. Then on April 4, 1996, the
government presented the court with a pile of papers under cover of a
declaration of the Department of State's Assistant Secretary for Oceans and
International Environmental and Scientific Affairs ("OES") Eileen Claussen
and upon the stated expectation that they "would be sufficient to warrant
modification." n3 The Secretary claims to understand her task to be to
provide "information deemed essential to decide defendants' motion for
modification" n4 as follows:
a. For each
and every country newly affected by section 609(b) of Pub.L. 101-162 ...
evidence regarding the absolute amount of [*464] exports of aquaculture
[**620] shrimp and wild caught shrimp for recent years, together with
evidence regarding the amount of aquaculture shrimp as a percentage of all
shrimp exports;
b. Evidence
of the State Department's efforts since 1989 to disseminate information
about ... TEDs[] and related technology worldwide;
c. Evidence
regarding the State Department's efforts to negotiate and encourage TEDs
use;
d. Evidence
of the State Department's communications in 1991 to all nations regarding
the [***10] use of TEDs, including a country-specific analysis of
information exchanged and any State Department response to information
received by each country;
e. Evidence
supporting the need for extensions of time for those countries that
primarily export aquaculture shrimp or harvest shrimp with technologies
designed to preserve sea turtles (e.g. Thailand, Ecuador, and Australia);
f. Evidence
regarding the ability of each nation newly affected by section 609 to comply
with the statute, and evidence regarding the time each nation needs to come
into compliance.
g. Evidence
of the specific process for the transfer of TEDs technology.
h. Studies
showing the amount of time it takes to prepare TEDs for use in each nation
newly affected by the embargo .
i. Evidence
regarding the reasons the May 1, 1996 deadline needs to be extended for
Mexico. n5
n2 And the court indicated that it was prepared to sit as
long as necessary for such presentation. See, e.g., transcript of hearing on
March 26, 1996 ("Tr."), pp. 3, 57.
n3 Supplemental Memorandum in Support of Defendants' Motion
for Modification of December 29, 1995, Order, p. 2.
At the same time, the plaintiffs have brought forth
additional papers of their own, which are referred to hereinafter. [***11]
n4 Declaration of Eileen Claussen, para. 2, p. 2.
n5 Id. Cf. Tr. passim.
B
The papers upon which the defendants (and the intervenor
-defendant) now apparently rest are revealing, but they are also
contradictory and/or unsupportive of the extraordinary relief requested.
That relief, of course, is a year's extension of time for all
countries, yet Secretary Spero indicates, as quoted above, that at least
eleven would not be affected by any embargo. Secretary Claussen now names
Mexico, El Salvador, Guatemala, Colombia and Indonesia in this regard. n6
Cf. Second Supplemental Declaration of Richard E. Gutting, Jr., para. 3, p.
3:
... I have
assumed that ... twelve certified nations will meet U.S. requirements and
that they will not be embargoed on May 1, 1996. These nations provide
approximately 15 to 20 percent of total U.S. shrimp imports.
Defendant
Schmitten admits in his declaration, paragraph 2, page 2, that
some
countries have stated that they will adopt regulatory programs that will
likely allow them to be certified by May 1, and many [***12] imported
shrimp and shrimp products are produced by aquaculture and therefore will
not be subject to an embargo[.]
[*465]
Indeed, Mr. Gutting's "conservative" assumption is that "as much as 50% of
all U.S. shrimp imports is harvested from aquaculture facilities and so
would not be subject to embargo." Id., para. 7, p. 6. Secretary Claussen
apparently agrees. n7
n6 See id., para. 3f, p. 6.
n7 See id., paras. 3a, 3e. The Secretary does point out,
however, that the
shrimp import statistics compiled by the U.S. Department of
Commerce are not collected in a manner that enables a breakdown indicating
whether imports are from aquaculture or are wild harvested shrimp, either on
a country-by-country basis or as a proportion of the total shrimp imports.
Id., para. 3a.
... And
conservatively assuming that ... 1996 import levels would otherwise be
similar to those in 1994, NFI estimates that the Court's December 29 order
is likely to exclude about 30 percent of total [***13] U.S. shrimp imports,
or about 180 to 190 million pounds of shrimp. This amount of shrimp had an
import value in 1994 of approximately $ 800 to $ 900 million.
Id., para.
8.
However significant these estimates, 15-to-20 percent or 50%
or 30 percent does not [**621] equal extension of time for 100% of the
putative exporters to the United States for the coming statutory year, nor
should they be so inflated given the law and the circumstances of this case.
With regard to those countries, public Commerce Department data on shrimp
imports in 1994 show Thailand in the lead in terms of both poundage and
dollar value, namely, 178.107 million and 981.047 million, respectively. n8
And the world's public press reports that some 95 percent of those shrimp
were the product of aquaculture n9, which the evidence in this case
indicated, and the court thus found, does not endanger the sea turtles.
Ergo, slip op. 95-208 only encompasses "shrimp or products of shrimp
wherever harvested in the wild". 19 C.I.T. at , 913 F. Supp. at 580. This
means that approximately 90 percent of the shrimp shipped by the number two
exporter to the United States, Ecuador, also is not implicated. n10 The
Commerce [***14] Department data for that nation were 106.056 million
pounds of shrimp valued at 455.096 million dollars. See 1995 Commerce Report
at 46. And its government has informed this court that it
has adopted
conservation measures carefully tailored to the particular circumstances of
species as they exist in Ecuador. With respect to sea turtles, Ecuador has
undertaken a national preservation program and has participated in
multilateral sea turtle conservation efforts. n11
n8 See U.S. Dep't of Commerce, Fisheries of the United
States, 1994 [hereinafter cited as "1995 Commerce Report"], p. 46 (Aug.
1995).
n9 See, e.g., Turtles in the soup, The Economist (U.S. ed.
March 16, 1996), at 64. This article further reports that Thailand "seems
happy to accept the American law" and that it has had a law of its own
protecting turtles since 1957. Id. See also Bangkok, Thailand, AP
Worldstream, March 8, 1996; Thai Delegation to Defend 2.4 Billion Dollar
Shrimp Business in U.S., Deutsche Presse-Agentur, March 8, 1996 (English);
Thailand Shrimps for Export are Farm-Raised, Xinhua News Agency, March 11,
1996 (English); in NEXIS News Library, CURNWS file. [***15]
n10 See Brief of Amicus Curiae the Government of Ecuador in
Support of Defendants' and Defendant-Intervenor's Cross-Motion for Summary
Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, p. 4.
n11 Id. at 3. See, e.g., id., Exhibit A (Republica del
Ecuador, Ministerio de Industrias Comercio, Integracion y Pesca,
Subsecretaria de Recursos Pesqueros, Direccion General de Pesca, Instituto
Nacional de Pesca, Conservacion y Proteccion de las Tortugas Marinas en
Aguas Ecuatorianas Continentales e Insulares. Informe Oficial (1995)).
[*466] Not only is it claimed that Thailand and Ecuador are
committed to conserving sea turtles while harvesting their shrimp, the U.S.
Secretary of State "specifically recognized the efforts of Mexico, ... which
has indicated that its programs will apply equally to the Atlantic (Gulf of
Mexico and Caribbean) and Pacific coasts", in his 1991 Certification to The
Congress Under Section 609 of Public Law 101-162 Regarding the Incidental
Capture of Sea Turtles in Commercial Shrimping Operations. According to both
sides to [***16] this case, this prediction has now become reality. n12 And
defendants' data show Mexico in third place in terms of both poundage and
value for U.S. shrimp imports for the most recent reported year. See 1995
Commerce Report, p. 46. Combining such data for just Thailand, Ecuador and
Mexico results in 334.739 million pounds worth 1.69 billion dollars or more
than 53 percent of the total for the first category and 63 percent of the
second for all countries. Cf. id.
n12 See Declaration of Eileen Claussen, paras. 3f, 3i;
Declaration of Todd Steiner in Support of Plaintiffs' Memorandum in
Opposition to the Government of El Salvador's Memorandum and Exhibit A
thereto, which is claimed to be an English translation of an emergency
NOM-EM-001-PESC-1996 of the Mexican federal government, effective April 1,
1996, requiring that TEDs be used by all Mexican vessels trawling for shrimp
in the Pacific Ocean and Gulf of California.
In their 1995 papers in support of their motion for summary
judgment, the defendants [***17] relied on (and repeated) the Secretary of
State's 1991 certification that Mexico (and Nicaragua and Colombia) intended
to apply sea turtle conservation efforts, including TED use, to their
Pacific coasts. n13 The day after the hearing on March 26, 1996 at which the
defendants refused to discuss any nation even arguably in need of an
extension of time, the government of nearby El Salvador, [**622] which
lies only on the Pacific Ocean, interposed a motion for leave to appear
herein as amicus curiae and to file a memorandum in support of defendants'
motion for modification which has been granted. While the memorandum states
[para. 5] that the
Government
of El Salvador has undertaken efforts which are consistent with the goals of
the ESA, i.e., the protection of endangered sea turtles. For example, the
Government of El Salvador is currently experimenting with the use of TEDs to
determine the feasibility of requiring their use. The Government of El
Salvador is also preparing studies concerning the economic and other impacts
of TEDs. Finally, the Government is currently considering proposals for laws
and regulations and programs, which are similar to those implemented by the
United [***18] States[,]
elsewhere it
is pleaded that that government cannot implement such regulations and
programs by May 1, 1996 [para. 3] and that a resultant embargo against
imports of shrimp and shrimp products from El Salvador "will cause
significant and irreparable economic harm" [para. 4].
n13 See, e.g., Federal Defendants' Reply Memorandum in
Support of Motion for Summary Judgment, p. 19.
This may be true n14, although the defendants are not
necessarily in agreement. See Declaration of Eileen Claussen, para. 3f ("El
Salvador ... apparently will be able to comply by May 1, 1996"). The
Central [*467] American Director of plaintiff Earth Island Institute's Sea
Turtle Restoration Project claims that El Salvador has some 70 shrimping
vessels, all on the Pacific, none with TEDs, and which ensnare approximately
21,000 sea turtles every year, about half of which expire n15, but he also
asserts that in 1992 El Salvador's Secretaria del Medio Ambiente had
developed a program to introduce TEDs on [***19] its trawlers in accordance
with section 609, and he describes activities in 1991, 1992, 1993 and 1994
related thereto. See April 4, 1996 Vargas Declaration, paras. 4-7. His
counsel complain that El Salvador, having known of this U.S. statute for
years, fails to explain why it has been unable to deploy TEDs by now on its
70-vessel fleet. See Plaintiffs' Memorandum in Opposition to the Government
of El Salvador's Memorandum, p. 5. On their part, the defendants have just
produced a copy of an "action request" from Secretary of State Baker to U.S.
embassies around the world on June 14, 1991, informing them, among other
instructions as to the significance of section 609:
In the U.S.,
a TED costs about 250 dollars, installed in the net. Much of this cost is
labor and TEDs produced and installed locally are sure to cost considerably
less. Depending on the cost of materials and labor a locally built and
installed TED should probably cost somewhere between 50 and 100 dollars. One
TED fits in each net so a standard double-rigged trawl vessel would need two
TEDs. A single TED lasts an average of two or three years and is estimated
to average less than one percent of the operating [***20] cost of the
vessel over the life of the TED.
And
Secretary Claussen adds:
NMFS indicates that a grid-style TED fully installed in a
webbing extension properly equipped with flotation can be installed in a
shrimp trawl in one to one-and-one-half hours by an experienced person. From
scratch, that is, installing a grid TED in a net extension, cutting the
flap, installing the funnel, equipping it with floats, and then inserting it
into a trawl would take even an experienced TED maker or net maker a minimum
of four hours.
Declaration
of Eileen Claussen, para. 3h.
n14 The 1995 Commerce Report shows imports of 6.729 million
pounds of shrimp from El Salvador in 1994, valued at $ 23,167,000.
n15 Declaration of Randall Arauz Vargas in Support of
Plaintiffs' Memorandum in Opposition to the Government of El Salvador's
Memorandum [hereinafter cited as "April 4, 1996 Vargas Declaration"], para.
3. The declarant adds that, according to his research, more than 60,000 sea
turtles are captured each year by 350 Central American vessels, all but 500
of those reptiles in the Pacific. Id., para. 2.
[***21]
C
Facts and circumstances such as the foregoing hardly favor
modification of the annual deadline the U.S. Congress enacted in 1989. But
El Salvador and other, understandably concerned countries of Central
[*468] America, as [**623] well as elsewhere in the world n16, can rest
assured that those of the "wider Caribbean" have been certified in
compliance with section 609. Moreover, slip op. 95-208 took note of the fact
that Trinidad and Tobago was not so certified last year, but that the May
1995 embargo of its shrimp and products from shrimp was soon lifted (in
August). See 19 C.I.T. at , 913 F. Supp. at 571-72 and n. 20. In other
words, while the timing of the commencement of any embargo has been
well-established, its duration depends on subsequent developments.
n16 In her declaration, Secretary Spero refers to nations
"newly affected" by slip op. 95-208. The defendants now share copies of the
written notification of that decision sent by the State Department to more
than 60 U.S. embassies and consulates on January 9, 1996, which was updated
on February 8, 1996. They also share copies of communications in regard to
those and other nations, the gists of a sampling of which upon expeditious
reading appear to be as follows: Australia (requesting TED-compliance
exemption due to geography and comparable turtle-conservation measures);
Bangladesh (97% of exports from aquaculture; 3% alleged to be harvested in
areas not frequented by sea turtles); Brazil (currently certified, but
subsequent certification uncertain due to weak enforcement regime); Cameroon
(U.S. receives no wild shrimp exports); Peoples Republic of China
(inadequate information; apparent lack of concern regarding compliance);
Colombia (necessary regulations in place; U.S. experts currently there to
instruct and install TEDs; OES affirmative recommendation expected); Costa
Rica (requests three-month delay in order to fully comply); Guatemala
(regulation in place but expects to need more time to comply; has asked for
U.S. assistance to meet deadline); Guyana (recertification recommended by
OES); Honduras (compliance feasible by start of shrimp season on July 1;
June certification review by OES requested); India (country-wide compliance
estimated to take "several years"; inquiry as to possibility of
certification for individual companies); Indonesia (comparable TED usage
since 1982); Ivory Coast (unsupported denials of existence of sea turtles in
territorial waters; no turtle conservation plan in place); Japan (no
intention of requiring TEDs or comparable protective methods by "fish"
trawlers); Kenya (not currently shrimp exporter to U.S.); Madagascar (no
exports of shrimp to the U.S.); Malaysia (turtle conservation regulations
claimed to exist but expected to be inadequate; awaiting documentation);
Nicaragua (certification recommended by OES); Pakistan (no TEDs or
comparable system in place); Panama (regulations in place; certification
likely); Peru (all exports from aquaculture); Philippines (all exports from
aquaculture; certification forms being timely submitted); Seychelles (no
wild-harvested shrimp); Singapore (shrimp by-catch of "fish" trawlers
alleged not to endanger sea turtles; no scientific data have been made
available); South Africa (compliance impossible by May 1, 1996); Spain
(further inquiry regarding guidelines, but no indication of compliance); Sri
Lanka (enforces program comparable to U.S.; methods harmful to turtles
banned; awaiting scientific documentation); Taiwan (claims comparable
methods but no production of documentation); Tanzania (no shrimp exports to
U.S.); Venezuela (recertification recommended by OES); and Vietnam (no
shrimp exports to U.S., but would like to begin).
[***22]
In requesting a one-year, around-the-world extension of time,
defendants' motion appears to present a paradox. To the extent they now
attempt to portray nations as genuinely "newly affected", their own
declarations tend to belie compliance within the additional period for which
they pray. For example, Secretary Spero claims three years were necessary
for most of the "Wider Caribbean nations" to achieve affirmative
certification n17, while defendant Schmitten states:
... NMFS
believes that, given its experience in Latin America, establishing an
adequate TED program for a country with little or no previous experience
with TEDs would take a minimum of two years.
Declaration
of Rolland A. Schmitten, para. 8, p. 6. In Mr. Gutting's view,
the task of
equipping tens of thousands of shrimp trawl vessels around the world with
U.S.-approved equipment would take considerable time and effort .... To take
India as an example, it would almost certainly take several years to enforce
TED compliance by thousands of Indian vessels along India's 8000 kilometer
coastline and within its vast 2 million square kilometer exclusive economic
zone.
Second
Supplemental [***23] Declaration of Richard E. Gutting, Jr., para. 6, p. 5.
[*469] On the other hand, defendant Schmitten also points
to "substantial [NMFS] technical assistance to countries in Latin America
for the past five years" n18, which Secretary [**624] Claussen confirms
n19 while further volunteering that
well before
the enactment of section 609, the government of Indonesia requested
instruction in the use of TEDs ... [and] participated in a TEDs training
session in 1982[, n20]
and that in
June 1991
the State
Department sent a cable to its embassies in Taiwan, Thailand, China,
Australia, Indonesia, Malaysia, and the Philippines, asking them to approach
their respective host governments to open a dialogue on the technical
elements of a program for the protection of sea turtles using TEDs.
Declaration
of Eileen Claussen, para. 3c, pp. 3-4. Perhaps this is why so many countries
have been certified in compliance in the past and why it appears from the
information presented that so many could be certified come May 1, 1996.
n17 Declaration of Joan E. Spero, para. 9, p. 7.
n18 Declaration of Rolland A. Schmitten, para. 5, p. 3.
[***24]
n19 See Declaration of Eileen Claussen, para. 3b.
n20 Id., para. 3c, p. 4.
If, as Secretary Claussen points out, nations have been on
notice of section 609, even before as well as after its formal enactment in
1989, then the presumed anticipation of Congress has been realized, and any
additional extension of time for all countries, including those certifiable
now, would be more than anomalous. Cf. id., para. 3i.
The concerned governments of the world, including that of the
United States which is responsible for enforcement of its Endangered Species
Act, should not need to be reminded of the age-old import of sea turtles to
their peoples and that the evidence in this case still indicates
more than
124,000 sea turtles drown annually due to shrimping by all other nations.
This represents the death of more than 340 sea turtles every day when TEDs
are not used.
19 C.I.T. at
, 913 F. Supp. at 568. And no amount of facile presentation in support of
the motion for modification has yet subtracted from this expert estimate by
plaintiff Steiner. In sum, [***25] on the record such as has been
developed to date, any modification of the deadline established in Pub.L.
No. 101-162, § 609(b), 103 Stat. 988, 1037-38, 16 U.S.C. § 1537
note, must be made in Congress and not in court.
D
Of course, this case reaffirms the historical method of
governance of the United States, which leaves relations with foreign
sovereigns and between the two political branches of the national government
essentially beyond the hale of the federal judiciary. Hence, part (a) of
Congress's section 609 has been held nonjusticiable herein. Compare Earth
Island Institute v. Christopher, 6 F.3d 648, 650 (9th Cir. 1993), and
this [*470] court's earlier slip op. 95-103, 19 C.I.T. at , , 890
F. Supp. 1085, 1088 (1995), with 6 F.3d at 654-56 (Brunetti, J.,
dissenting in part). That part provides:
The Secretary of State, in consultation with the Secretary of
Commerce, shall, with respect to those species of sea turtles the
conservation of which is the subject of regulations promulgated by the
Secretary of Commerce on June 29, 1987--
(1) initiate negotiations as soon as possible for the
development of bilateral or multilateral agreements with other [***26]
nations for the protection and conservation of such species of sea turtles;
(2) initiate negotiations as soon as possible with all
foreign governments which are engaged in, or which have persons or companies
engaged in, commercial fishing operations which, as determined by the
Secretary of Commerce, may affect adversely such species of sea turtles, for
the purpose of entering into bilateral and multilateral treaties with such
countries to protect such species of sea turtles;
(3) encourage such other agreements to promote the purposes
of this section with other nations for the protection of specific ocean and
land regions which are of special significance to the health and stability
of such species of sea turtles;
[**625] (4) initiate the amendment of any existing
international treaty for the protection and conservation of such species of
sea turtles to which the United States is a party in order to make such
treaty consistent with the purposes and policies of this section; and
(5) provide to the Congress by not later than one year after
the date of enactment of this section--
(A) a list of each nation which conducts commercial shrimp
fishing operations within the geographic range [***27] of distribution of
such sea turtles;
(B) a list of each nation which conducts commercial shrimp
fishing operations which may affect adversely such species of sea turtles;
and
(C) a full report on--
(i) the results of his efforts under this section; and
(ii) the status of measures taken by each nation listed
pursuant to paragraph (A) or (B) to protect and conserve such sea turtles.
Certainly, this mandate to negotiate "as soon as possible"
and to apprise Congress "not later than one year after the date of
enactment" hardly bespeaks an additional annum of delay more than six years
after that date. On the other hand, starting in 1991 ostensibly pursuant to
part (b) of section 609, supra, the Department of State has taken the
opportunity,
to stress once again, to the Congress and to other countries whose
commercial shrimp fisheries may adversely affect sea turtles, its commitment
to promoting, as a matter of policy, equivalent [*471] measures to protect
sea turtles in other areas where sea turtles are taken incidental to
commercial shrimp fishing operations[,]
to quote
Secretary Spero's certification of April 27, 1994, which was repeated
verbatim in [***28] her official communications to Congress on April 30,
1993 and April 28, 1995. n21 All but identical precatory language is found
in the earlier certifications of Secretary Eagleburger in 1991 and Under
Secretary of State Zoellick on April 30, 1992. n22 Given defendants' motion
at bar, those representations may have been nothing more than lip service.
n21 Compare Defendants' Memorandum in Support of Their Motion
for Summary Judgment and in Response to Plaintiffs' Motion for Summary
Judgment, Exhibit 4, p. 2 with Exhibit 3, p. 3 and Exhibit 5, p. 3.
n22 See id., Exhibit 1, p. 2. and Exhibit 2, p. 3.
E
Be those as they were, the court's slip op. 95-208 was
expedited within the twelve-month, annual timeframe adopted by Congress so
as to afford all sides affected as much time as possible to contemplate, if
not realize, individuated compliance with the long-standing law on or before
May 1, 1996. Defendants' motion has cut short the period of intended
accommodation afforded by the court, but [***29] to no positive effect.
Indeed, the inadequacy of this interruption causes the court to consider CIT
Rule 11, which provides, in part:
(b) REPRESENTATION TO COURT.
By presenting to the court (whether by signing, filing,
submitting, or later advocating) a ... written motion, ... an attorney ...
is certifying that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances,--
(1) it is
not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation;
***
(3) the
allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after
reasonable opportunity for further investigation or discovery; and
(4) the
denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on a lack of information or
belief.
[**626] Clearly in the court's judgment, the defendants
violated these expectations in the presentment of their motion for
modification. In fact, it has engendered exactly the kind of [***30]
confusion which the rule has been adopted to prevent. Whether the perception
of impossibility the defendants attempt to perpetrate applies to foreign
exporters or to themselves is not certain. Whichever, the governing law, the
controlling facts and their expectable allegiances and duties are (or should
be) clear enough to state that, but for the desirability of curtailing
further litigation, [*472] this court would order the defendants to show
cause why sanctions should not be imposed pursuant to CIT Rule 11(c).
II
In expediting slip op. 95-208 for the benefit of all
interests affected, the court's order of December 29, 1995 was clearly
interlocutory, with entry of any final judgment contingent upon resulting
exigencies. See 19 C.I.T. at , 913 F. Supp. at 579-80 and n. 40. The
intent of the court also was (and remains) to assist in achieving the most
just conclusion possible under the circumstances.
As cited at the outset of this decision, the defendants and
the intervenor-defendant have already docketed appeals. And the court is
unable to conclude in the aftermath of hearing their motion for modification
that their real goal is not more litigation. Cf. Weber, Crouse, [***31]
Irvin & Iudicello, Delay and Denial - A Political History of Sea Turtles and
Shrimp Fishing (April 1995). Indeed, while pursuing their appeals, the
defendants and intervenor-defendant take the position that this court is not
without authority to modify that part of slip op. 95-208 for which they seek
appellate review. See, e.g., Tr. at 5, 54. Cf. id. at 64-65; Plaintiffs'
Memorandum in Opposition to the Government of El Salvador's Memorandum, pp.
2, 3. Whatever jurisdiction remains with this court n23, as discussed above
it could not even consider grant of the extraordinary equitable relief
requested in the absence of compelling evidence. But, if further judicial
review is genuinely their intent, acceleration of entry of final judgment in
this Court of International Trade could facilitate such process.
n23 See, e.g., CIT Rule 62(c); Hawaii Housing Authority v.
Midkiff, 463 U.S. 1323, 1324, 77 L. Ed. 2d 1426, 104 S. Ct. 7 (1983)
(Rehnquist, J.), and cases cited therein.
Having [***32] heard no objection at the hearing to this
suggested advancement, the court necessarily must review and consider its
earlier slip ops. 95-103, 19 C.I.T. , 890 F. Supp. 1085 (1995),
and 95-169, 19 C.I.T. (Oct. 12, 1995), as well as 95-208, issued herein.
Initially, after this case had been recommenced here as a result of
dismissal for lack of subject-matter jurisdiction in the U.S. District Court
for the Northern District of California sub nom. Earth Island Institute
v. Baker, 1992 U.S. Dist. LEXIS 8604 (Aug. 6, 1992), aff'd, 6 F.3d
648 (9th Cir. 1993), which opinions held such jurisdiction to rest
exclusively with this Court of International Trade under 28 U.S.C. §
1581(i)(3) and (4) except for plaintiffs' claim(s) therein pursuant to
part (a) of section 609, supra, this court in slip op. 95-103 denied
defendants' motion to dismiss all the named parties plaintiff (save the
Georgia Fishermen's Association, Inc. ("GFA")) plus the Secretary of
Commerce and the Assistant Administrator of the NMFS as parties defendant
essentially on the ground of lack of standing to sue or be sued.
Cross-motions for summary judgment thereafter led to slip op. 95-208, which
sustained [***33] the standing of all the named plaintiffs except GFA, as
well as that of defendants Brown and Schmitten, given the nature of the
equitable relief required. The court declared that [*473] the defendants
are not properly enforcing part (b) of section 609, supra, by restricting
its mandate to the Gulf of Mexico -- Caribbean Sea -- western Atlantic Ocean
but also that their approach under section 609(b) (2) is not arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law
within the meaning of 5 U.S.C. § 706(2). n24
n24 In sustaining defendants' approach with regard to the
comparability required by section 609(b) (2), the court is constrained by
the insinuations of their papers just filed to remind all who trawl for
shrimp in the wild that TEDs are not a judicial solution to the problem of
endangered species of sea turtles' drowning in the nets. Slip op. 95-208
simply concludes that the plaintiffs failed to prove that that approach by
the U.S. government is contrary to law.
[**627] In view of the [***34] foregoing, the motion of
the defendants and the intervenor-defendant for modification of slip op.
95-208 must be, and it hereby is, denied. n25 There being no other
outstanding motions or applications, final judgment will now enter
accordingly.
n25 Counsel for the defendants and the intervenor-defendant
have requested that, if modification were denied, the court stay its
December 29 order pending appeal. If these request(s) imply that a stay
entails a different analysis, this court is unaware of such a standard, and
the movants have not even attempted to show otherwise. Thus, their requests
for a stay must also be hereby denied.
So ordered.
Dated: New
York, New York, April 10, 1996
Thomas J. Aquilino, Jr.
Judge
JUDGMENT
Thomas J. Aquilino, Jr., Judge
EARTH ISLAND INSTITUTE etc.. et al., Plaintiffs, v. WARREN
CHRISTOPHER etc.. et al., Defendants.
This case having been duly submitted for decision; and the
court, after due deliberation, having rendered decisions herein; Now,
[***35] therefore, in conformity with said decisions, it is
ORDERED, ADJUDGED and DECREED that those part(s) of the
cross-motions for summary judgment of the defendants and the intervenor-defendant
which seek dismissal from this case (a) of The Georgia Fishermen's
Association, Inc. as a party plaintiff and (b) of claims of the remaining
parties plaintiff for relief from defendants' enforcement of Pub. L. No.
101-162, § 609, 103 Stat. 988, 1037-38, 16 U.S.C. § 1537 note,
except for part (b) thereof, be, and they hereby are, granted, and that
named plaintiff and those claims are hereby dismissed; and it is further
ORDERED, ADJUDGED and DECREED that plaintiffs' motion for
summary judgment be, and it hereby is, denied, except as hereinafter
ordered, adjudged or decreed; and it is further hereby
ORDERED, ADJUDGED and DECREED that the defendants are not
properly enforcing Pub. L. No. 101-162, § 609(b), 103 Stat. 1038, 16
U.S.C. § 1537 note, by restricting its mandate to the Gulf of Mexico --
Caribbean Sea -- western Atlantic Ocean; and it is further
ORDERED that the defendants, and each of them and their
officials, employees, servants, sureties and assigns hereby is and are
directed [***36] to, prohibit not later than May 1, 1996 the importation of
shrimp or products from shrimp wherever harvested in the wild with
commercial fishing technology which may affect adversely those species of
sea turtles the conservation of which is the subject of regulations
promulgated by the Secretary of Commerce on June 29, 1987, 52 Fed. Reg.
24,244, except as provided in Pub. L. No. 101-162, § 609(b)(2), 103
Stat. 1038, 16 U.S.C. § 1537 note.
Dated: New
York, New York, April 10, 1996
Thomas J. Aquilino, Jr.
