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Us v bengis and others


The United States of America appeals from two orders of the United States District Courtfor the Southern District of New York whichdenied its applications for a restitution award in favor of the Republic of South Africa, pursuant to, first, the Mandatory Victims Restitution Act of 1996 (MVRA),and second, the Victim and Witness Protection Act of 1982(VWPA). The Appeals Court ruled that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, and (2) is a victim, as defined by the MVRA and VWPA, eligible to receive restitution. Accordingly, the Appeals Court said, "restitution is owed to South Africa."
The case involves the fact that from 1987 to 2001, Arnold Bengis, Jeffrey Noll and David Bengis (defendants) engaged in an elaborate scheme to illegally harvest large quantities of South Coast and West Coast rock lobsters in South African waters for export to the United States in violation of both South African and U.S. law. The district court heldthat South Africa had no property interest in either the lobsters that the defendants took from South African waters; that the governmentfailed to prove that the illegally harvested lobsters were the property of South Africa; and finally thateven if restitution was permissible as a matter of law, "the complication and prolonging of the sentencing process resulting from the fashioning of the order of restitution under this section would outweigh the need to provide restitution to the Republic of South Africa."
The Appeals Court reversed and remanded the district court orders and said, "?we hold that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, (2) is a victim for restitution purposes, as defined by the MVRA and VWPA, and (3) whatever the complexity in fashioning a restitution order in this case, it is insufficient to preclude entry of suchan order under the MVRA. Accordingly, the judgments of the district court are vacated and the case is remanded to the district court for further proceedings consistent with this opinion."

Defenders of Wildlife v. Hogarth


Fishermen in the Eastern Tropical Pacific Ocean sought to exploit the synergy between dolphins and yellowfin tuna and began adopting a fishing method called purse seine fishing. Fishermen using this method inevitably set their nets around dolphins and tuna alike. This fishing method resulted in the deaths of millions of dolphins and prompted a public outcry that eventually resulted in legislation banning the method. The Marine Mammal Protection Act (MMPA), disallowed the taking of marine mammals designated as “depleted” and further banned importation of fish or fish products caught using technology that resulted in incidental kill or serious injury to marine mammals in excess of U.S. standards. The International Dolphin Conservation Program Act (IDCPA), revised the MMPA to provide new import criteria for tuna products. In the IDCPA, Congress charged the Secretary of the Commerce with drafting implementing regulations, which eventually became the “Interim-Final Rule,” some of the provisions of which are at issue in this case. On February 8, 2000, the plaintiffs (a number of environmental groups, including Defenders of Wildlife) filed suit in the Court of International Trade and the Court denied the plaintiffs’ summary judgment motion. The plaintiffs now appeal. The Court of Appeals dealt with the two following questions: First, the plaintiffs denounce the inconsistency between the IDCPA and the Interim-Final Rule regarding the backdown procedure. Whereas the IDCPA provided that any regulations must “ensur[e] that the backdown procedure ... has begun no later than 30 minutes before sundown,” 16 U.S.C. § 1413(a)(2)(B)(v) the Interim-Final Rule stated that, “the backdown procedure must be completed no later than one-half hour after sundown…” 50 C.F.R. § 216.24(c)(6)(iii). Given the contrasting language, the plaintiffs argued that the Interim-Final Rule was in violation of the authorizing statute. The court concluded that NMFS was authorized to alter the backdown procedure in the IDCPA, since the Interim-Final Rule was drafted in a manner consistent with the IDCP (the international conservation agreement giving rise to the IDCPA). Second, NEPA commands federal agencies to prepare an environmental impact study (EIS) when proposing “major Federal actions significantly affecting the quality of the human environment[.]” 42 U.S.C. § 4332(2)(c). When it is unclear whether a proposed action will “significantly affect” the environment, the agency prepares an environmental assessment (EA) in order to determine whether preparation of a full EIS is necessary. After preparing an EA in this case, NMFS decided that the Interim-Final Rule would not have a significant impact on the human environment so refrained from preparing an EIS and promulgated the rule. With regard to this charge, the court held that NMFS took a “hard look” at the dolphin mortality problem and the effects of the Interim-Final Rule on the environment, and considered the relevant areas impacted by its regulation. Additionally, according to the court, NMFS reasonably found that the preferred Interim-Final Rule would not have a significant impact on the dolphin stock in the Eastern Tropical Pacific Ocean.

Loggerhead Turtle v. Volusia County


A citizen filled a suit seeking declaratory and injunctive relief against a county in the state of Florida. Invoking a vicarious-liability theory, the plaintiffs alleged that the county’s “refusal ... to ban beachfront artificial light sources that adversely impact sea turtles” violated the ESA’s “take” prohibition. Indeed, sea turtle hatchlings suffering from disorientation due to artificial lighting. The Court agreed with the county that it could not be considered the cause of takes produced through lack of enforcement in Ormond Beach and New Smyrna—because the county did not possess the legal authority to enforce municipal ordinances— Yet, the court held that the plaintiffs had established causation vis-à-vis the county based on the county’s regulatory action.

Humane Society of the United States v. Clinton


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.

Humane Society of the United States v. Brown


In addition to banning large-scale pelagic driftnets by U.S. vessels and nationals, the Driftnet Act established a mechanism to deter the use of driftnets by foreign vessels in international waters. Under this mechanism, the U.S. Secretary of Commerce is to identify nations whose vessels have engaged in large-scale driftnet fishing in waters beyond any nation’s jurisdiction (i.e., international waters). The vessels of an identified nation are then denied port privileges in the U.S. and, depending on the outcome of bilateral consultation, the U.S. may further ban imports of fish and other products. In this case, the Humane Society sued the Secretary of Commerce and other government officials, alleging that they had shirked their duties under the Driftnet Act. Specifically, the Humane Society alleged that the government agency unjustifiably failed to identify Italy as a nation whose vessels engaged in driftnet fishing in international waters. The Court ruled that the undisputed facts established a non-discretionary duty to identify Italy.

Defenders of Wildlife v. Gutierrez


On May 19, 2005, a group of environmental organizations (appellants in this case) submitted a petition for emergency rulemaking to NMFS, which requested immediate regulations to require all ships entering and leaving all major East Coast ports to travel at speeds of 12 knots or less within 25 nautical miles of port entrances during expected right whale high-use periods. NMFS denied that request. At around the same, the appellants were also challenging the Coast Guard regarding its duties under the ESA.The appellants pointed out that the Coast Guard has the authority to control vessel movement and the obligation to take into account “environmental factors” when so doing. They argued that the agency was violating the ESA by establishing and maintaining shipping lanes, without appropriate safeguards, in areas inhabited by the whales. On November 9, 2005, appellants filed an action in federal district court against NMFS and the Coast Guard. The district court granted appellees’ cross-motion for summary judgment and denied that of appellants. The appellants appealed. The appellate Court dealt with two questions: - The court found that no abnormal circumstances were present and that NMFS was well aware of its mandate to protect right whales. The court further determined that there was no legal justification for disturbing the agency’s decision to focus its resources on promulgation of the final, comprehensive rule. - The appellate court determined that the Coast Guard is the sole body charged with the duty of promulgating traffic separation schemes under federal law. Therefore, nothing controverted the finding that Congress intended the Coast Guard to have the authority to promulgate traffic separation schemes and to be held accountable for its decisions per the ESA and APA. The appellate court also found the appellants’ evidence of final agency action to be convincing. The Court held that Coast Guard's tasks require a significant amount of discretion, making them agency action subject to review under the APA.

Yates v. United States


A fisheries officer noticed that the defendant (Yates) had scores of undersized red grouper on board. This was a violation of federal conservation regulations, which prohibited fishermen from retaining grouper under a certain length. Yates later instructed one of his crew to throw the undersized fish overboard in an attempt to conceal the fishing violation. Based on Yates’s decision to throw the fish overboard, the prosecutor charged Yates with violation of 18 U.S.C. § 1519 and § 2232(a). A jury convicted Yates on both counts. Yates appealed his conviction under section 1519. The key question for the Supreme Court was whether a fish could be considered a “tangible object” for purposes of section 1519, the provision of the Sarbanes-Oxley Act making it illegal to destroy or conceal various types of evidence with the intent to obstruct justice. The Supreme Court determined that “tangible object” under section 1519 means an object used to record or preserve information (e.g., a computer hard drive). Accordingly, the Court held that “tangible object” could not apply to the fish that Yates instructed his crew member to throw overboard.

Winter, Secretary of the NAVY v. Natural Resources Defense Council, Inc.


The US Navy was using mid-frequency active (MFA) sonar during its training exercises off the coast of southern California. The plaintiffs argued that the use of sonar causes serious injuries to marine mammals and sued the Navy, asking for declaratory and injunctive relief on the basis that the Navy had violated NEPA by conducting harmful sonar training without having first prepared an Environmental Impact Statement (EIS). The District Court granted the injunction after determining that the plaintiffs had shown a probability of success on their NEPA and CZMA claims. The court of appeals upheld the injunction because the negative impact of the injunction on the Navy was considered speculative, and because the balance of hardships and the public interest favored the plaintiffs. The Navy filed a petition for a writ of certiorari with the U.S. Supreme Court. The Court rules that the standard for granting an injunction used by the lower court (requiring only a possibility of irreparable harm) was too lenient. But even if the plaintiffs could have shown that there was a likelihood of irreparable harm (the correct standard), this was outweighed by the public and Navy’s interest in effective and realistic training. Deference must be given to the military with regard to the relative importance of a particular military interest.

Turtle Island Restoration Network v. Evans


Since 1987, United States regulations have required that shrimp trawlers generally install turtle excluder devices (TEDs) when operating in U.S. waters where sea turtles are located (Section 609 of Public Law 101-162). A group of countries brought a complaint to the Dispute Settle Mechanism of the WTO. The WTO Appellate Body ultimately ruled that Section 609 was a permissible conservation measure, but that U.S. enforcement of it was discriminatory. Then, a coalition of environmental groups sued defendant federal officials in the U.S. Court of International Trade, alleging that the officials’ regulations unlawfully permitted exported shrimp to enter the U.S. in violation of Section 609. Here, the defendant officials are appealing the Court of International Trade’s holding that the government’s regulations were unlawful. The appellate court found that the plain language of the statute only authorized an embargo of shrimp that was caught without the use of TEDs. This language did not authorize an embargo of TED-caught shrimp simply because the nation’s fleet as a whole lacks certification. The appellate court found no evidence in the legislative history to support the U.S. government’s position, but did find that the primary goal of the law was to protect the domestic shrimping industry from unfair competition (by foreign vessels able to catch shrimp without the costs of TEDs) rather than to protect sea turtles from drowning. The appellate court also held that Section 609 (b)(1) refers to shipments, not nations.

United States of America v. Marshalls 201


The defendant is the owner of the Marshall 201, a vessel spotted by a U.S. Coast Guard within the U.S. EEZ surrounding Baker and Howland Islands. The vessel had no permission to fish in the zone. Nevertheless, the vessel carried 130 tons of tuna presumably harvested from U.S. waters. The vessel owner did not contest the allegation of illegal fishing as such, but rather argued that it was an “innocent owner”. Thus, the court decided this case under the Civil Asset Forfeiture Reform Act’s “innocent owner” provision. This provision precludes civil forfeiture of an asset where the owner proves, by a preponderance of the evidence, that it (a) “did not know of the conduct giving rise to the forfeiture,” or (b) “upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.” 18 U.S.C. § 983(d)(2)(A). Here, the owner argued both options, claiming that it did not know of the illegal fishing or, in the alternative, that it took all reasonable steps to halt the illicit activity upon learning of it. Considering all the evidence, the court ruled that the owner had failed to carry its burden of proving the absence of a “genuine issue of material fact” regarding its claim of innocent ownership.