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.
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.
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.
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.
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.
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.
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.
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.
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.
All three appellants have appealed against their convictions. There is no appeal against the sentences, because of the mandatory provisions of the legislation in casu. The representative of the Crown conceded Accused No. 5's appeal, due to the unsatisfactory nature of the evidence against him, specifically. Since Accused No. 5 spoke a different language than the others, the evidence lacked clarity concerning what he said. This was found to be proper and fair, and Accused No. 5 was accordingly found not guilty and discharged.
The next issue of contention was whether the aforesaid rhino horns possessed by Accused No. 1 and trafficked by Accused No. 6 were of an animal "indigenous of Swaziland". In his judgement the Chief Justice rejected this contention that the Crown had to prove this, as legislation includes rhinoceros of all species, no matter if indigenous or not. However, Mr. Kuny, representing the Crown, was convinced that proof is needed and thus the appeals of Accused Nos. 1 and 6 were upheld.
So, scientific studies, including migration flows, probability calculations, DNA-testing, etc., were completed to establish that the horns in question were of a white rhino, which are indigenous to Swaziland. However, the Judge, quoting past cases Miller v Minister of Pensions 1957(2) and R v Mlambo 1957(4), concluded that the Crown discharged the onus of proving beyond reasonable doubt that the horns in question were those of a white rhino, and animal indigenous to Swaziland. Therefore, the appeal cannot be upheld on these grounds.
Two other grounds of appeal, which the Counsel contended, constituted irregularities.
During the investigation described above, a tape recorder was used to gather evidence, which was subsequently presented as such in the court proceedings to convict Accused Nos. 1 and 6. The Counsel was of the view that there are unsatisfactory features concerning the evidence:
1. Recorded on a small recorder operated manually, as well as kept in possession, by one of the rangers up until the trial. This included two transcriptions of the tape recording done at different dates, which differed in many respects from each one another.
2. The Crown counsel consulted with two of the Crown witnesses, one of whom was still under cross-examination. This conduct was "unethical, irregular and unwise". It was contended that Accused No. 1 was therefore prejudiced and had not received a fair trial.
Concerning these issues, the trial court held that "while the proper procedure had not been followed, the purpose for which the consultation had taken place was a bona fide one and no sinister inference could be drawn and no real possibility of prejudice could be envisaged". The Judge reflected this view as well.
In the first place it is clear that the evidence of Accused No. 1's possession of the horns was overwhelming. The evidence was presented in a consistent fashion and no real criticism can be leveled at their credibility because of material contradictions. Concerning Accused No. 6, it was taken into account that the court clearly relied on the evidence put forth (tape recording), convicting Accused No. 6, and that it erred in doing so and that this constituted an irregularity. The Judge reasoned however, that the court can still convict if on the evidence and the findings of credibility, unaffected by the irregularity, there is proof beyond reasonable doubt. Both appeals are dismissed and their convictions and charges are confirmed. (Provided by: UNODC SHERLOC)