The Driftnet Act establishes a process under which the United States may take various actions against a foreign nation whose fishing vessels on the high seas engage in large-scale driftnet fishing. Italian fishing vessels were using these nets. Subsequent negotiations between Italy and the President of the U.S. resulted in a commitment from Italy to terminate illegal driftnet fishing. Based on this agreement, the Secretary of Commerce certified that Italy was now in compliance. The present case arose in 1998 when the Humane Society and others brought suit in the Court of International Trade against the President and Secretary of Commerce because it had evidence that Italy continued to use driftnets during the 1997 and 1998 fishing seasons (i.e., after the U.S. government had removed Italy from scrutiny based on Italy’s agreement to end driftnet fishing). After a partial loss in the lower court, the plaintiffs appealed to the Federal Circuit. The Court ruled that in this kind of legislation, when Congress chooses a broad and ill-defined phrase (such as “satisfactorily concluded”) to describe the threshold that an agreement must meet to avoid import sanctions, the courts will not intervene and say whether the particular commitments made by a country like Italy should have satisfied the President. Given that this question largely concerns the good faith of the Italian government, the President has broad discretion in making the final call. The plaintiffs argued that the Secretary should have conducted some investigation to verify Italian practices even after the certification was issued. Since this was not done, the plaintiffs argued, the U.S. government’s decision was arbitrary and capricious. The appellate court agreed with the government that the focus here was on the conduct and intentions of the government, not the conduct of individuals and fishing vessels. Therefore, the decision was not so unreasonable as to be arbitrary and capricious.
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236 F.3d 1320
The appellate court affirmed the decision of the Court of International Trade. Specifically, the appellate court (1) denied plaintiffs’ request to issue a writ of mandamus directing the president to impose import sanctions on Italy for violation of the Driftnet Act, and (2) denied their request for an order requiring the Secretary of Commerce to rescind his certification that Italy had terminated large-scale driftnet fishing.
Court cases cited
Humane Soc'y of the United States v. Brown, 920 F. Supp. 178, 192-196 (Ct. Int'l Trade 1996)
High Seas Driftnet Fisheries Enforcement Act, 16 U.S.C. §§ 1826-1826g
Administrative Procedure Act, 5 U.S.C. § 551 et seq
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