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Defenders of Wildlife v. Hogarth

2003

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.

Humane Society of the United States v. Clinton

2001

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.

Turtle Island Restoration Network v. Evans

2002

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.

American Pelagic Fishing Company, L.P. v. United States

2004

The plaintiff is American Pelagic, a company whose President and sole shareholder, purchased a large boat, the Atlantic Star, in 1996 to transform it into a massive fishing vessel. In 1997, NMFS issued both a valid Atlantic mackerel permit and a Northeast Multispecies fish permit to the vessel. In 1997 and 1998, some riders to appropriations bills limited the size of the ships and revoked the permits that had been issued. NMFS later promulgated regulations reflecting this prohibition. As a result, the Atlantic Star was unable to receive a permit to fish in any U.S. fishery within the EEZ. American Pelagic brought suit alleging that the 1997 and 1998 Appropriations Acts revoking its permits and barring it from receiving future permits effected a temporary taking of the Atlantic Star. Specifically, American Pelagic asserted that it had a property right in its fishery permits and authorizations that was taken by legislation, and that the U.S. had taken all economically viable use of the vessel without just compensation in violation of the Fifth Amendment of the U.S. The lower court ruled in its favor, determining that the fishery had possessed a property interest in using the vessel to fish and that a regulatory taking had occurred. The United States now appeals. The court determined that the reasoning in Mitchell Arms and Conti applied to this case. In Conti, the court found that no property interest could be held in a swordfishing permit because it could not be assigned, sold, or transferred; because it did not confer exclusive fishing privileges; and because the government at all times retained the right to revoke, suspend, or modify it. The court also determined that as of 1996, when the Atlantic Star was purchased, the Magnuson Act and the attendant regulatory scheme precluded any permitted fisherman from possessing a property right in his vessel to fish in the EEZ. This was because, in passing the Magnuson Act, Congress explicitly assumed sovereign rights over Atlantic mackerel and herring in the EEZ. In short, the court found no right to fish in the EEZ inhered in American Pelagic’s title when it acquired the Atlantic Star. The court therefore reversed the finding that the revocation of Americans Pelagic’s permits and authorization letter constituted a taking under the Fifth Amendment.