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May 29, 1979

CECIL D. ANDRUS, et al., Defendants, vs. ENVIRONMENTAL DEFENSE FUND, INC., et al., Intervenor-Defendants.

The opinion of the court was delivered by: PRATT


Plaintiff Cayman Turtle Farm, Ltd., operates a marine farm, or mariculture operation, on Grand Cayman Island, Cayman Islands, British West Indies, where it breeds green sea turtles in captivity for scientific and commercial purposes. The Company's farmed turtle products, which are exported to the United States and other countries, consist of turtle shell jewelry, steak, soup, meat, leather and turtle oil. In this action, plaintiff specifically seeks to invalidate and enjoin enforcement of the regulations issued by defendant Cecil D. Andrus, Secretary of the Interior, and Juanita M. Kreps, Secretary of Commerce, under the authority of the Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C. § 1531-43 (hereinafter cited as ESA) insofar as these regulations prohibit the importation and trade in the United States of all green sea turtle products produced in mariculture operations.

Plaintiff has filed a motion for summary judgment in which it advances three arguments in support of its position that the Secretaries should be enjoined from prohibiting the importation and trade of farm green sea turtles: (1) the regulations promulgated by the Secretaries are in excess of their authority under the Endangered Species Act of 1973; (2) the regulations are contrary to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 27 U.S.T. 1087, T.I.A.S. No. 8247 (hereinafter referred to as Convention); and (3) the regulations are without support in the administrative record. The Government of the Cayman Islands has filed an amicus curiae brief in support of plaintiff's motion for summary judgment. The defendant Secretaries and intervenors Environmental Defense Fund, Inc., et al., have filed cross-motions for summary judgment. We find that there are no genuine issues of material fact which would prevent the grant of a summary judgment. For reasons discussed below, we deny the plaintiff's motion for summary judgment and grant the motions for summary judgment filed by defendants and intervenors.

 I. Procedural History

 The administrative regulations challenged in this action have a lengthy procedural history, which we set forth in considerable detail. On August 9, 1974, Dr. F. Wayne King, Director of Conservation and Environmental Education of the New York Zoological Society, pursuant to 16 U.S.C. § 1533(c)(2) petitioned the Department of Commerce and Interior to list the green sea turtle as endangered and the loggerhead and Pacific ridley turtles as threatened under the Endangered Species Act of 1973. On August 16, 1974, an announcement was made in the Federal Register that

 United States Fish and Wildlife Service ("USFWS") of the Department of the Interior and the National Marine Fisheries Service ("NMFS") of the Department of Commerce would conduct a formal joint review under the endangered Species Act of 1973 to ascertain the status of green, loggerhead and Pacific ridley sea turtles. 39 Fed. Reg. 29,605 (August 16, 1974). On May 20, 1975, USFWS and NMFS published in the Federal Register a proposed regulation listing green, loggerhead and Pacific ridley sea turtles as threatened species. Among other things, the proposed regulations provided an exception for the importation, exportation, taking and transporting of sea turtles (and their parts and products) derived from mariculture operations with the provision that after two years the exception would apply only to turtles derived from closed-cycle farming operations which were self-sustaining and independent of wild stocks. 40 Fed. Reg. 21,974, 21,977 (May 20, 1975). The proposed sea turtle regulations invited comments, suggestions, objections and factual information from interested persons. Numerous comments were received by USFWS and NMFS over an extended period of time. Many of these comments specifically addressed the proposed mariculture exception.

 Public hearings on the proposed listing of the three species of sea turtles and on the DEIS were held in Washington, D.C. on February 25-26, 1976. Scientists, conservationists, businessmen, shrimpers and representatives from state and foreign governments participated in the hearings. The transcript of those public hearings is part of the record below. Administrative Record (hereinafter cited as "R") XV B. On March 19, 1976, notice was published in the Federal Register extending the comment period on the DEIS until April 5, 1976. 41 Fed. Reg. 11,602 (March 19, 1976). Plaintiff Cayman Turtle Farm, Ltd. and its predecessor, Mariculture, Ltd., submitted comments on several different occasions to USFWS and NMFS in support of the mariculture exception in the proposed regulations. Plaintiff also participated in the public hearings of February 25-26, 1976 (R. XV B). The intervenor-defendants submitted comments in opposition to the mariculture exception in the proposed regulations and also participated in the public hearings. (R. XV B) On June 16, 1976, USFWS and NMFS published proposed regulations listing the green, Pacific ridley and loggerhead turtles as threatened under the similarity of appearance provision of the Endangered Species Act of 1973 because of their similarity to the endangered hawksbill, leatherback and Atlantic ridley. (R. XVII) 41 Fed. Reg. 24,378 (June 16, 1976).

 On February 28, 1978, intervenor-defendant Environmental Defense Fund, Inc. ("EDF") requested that the public comment period on the proposed regulations be reopened to permit the submission of newly acquired evidence and related data. This request was granted and the comment period was extended to April 17, 1978. 43 Fed. Reg. 12,735 (March 27, 1978). USFWS and NMFS received additional comments from EDF and from plaintiff during the extended comment period. (R. XXI B 10, 11). A request by plaintiff for an opportunity to respond to the submission made by EDF was denied on April 10, 1978. (R. XXI A 1).

 On July 28, 1978, USFWS and NMFS announced in the Federal Register the final regulations listing the loggerhead sea turtle as a threatened species; the green sea turtle as a threatened species in all areas except the Florida and Mexican Pacific coasts, where the populations were listed as endangered; and the Pacific ridley sea turtle as threatened everywhere except the Mexican Pacific coast, where the population was listed as endangered. These regulations prohibited, inter alia, all importation of these turtles with no exception for commercial mariculture operations. 43 Fed. Reg. 32,800 -- 32,811 (July 28, 1978).

 By letter dated August 15, 1978, plaintiff formally requested USFWS and NMFS to reconsider the sea turtle regulations insofar as they failed to provide an exception for commercial mariculture activities, and to stay enforcement thereof as against plaintiff's turtle products being shipped to and through the United States pending such reconsideration. (R. XXIV A 1). The stay request was denied orally on August 31, 1978.

 On September 5, 1978, plaintiff commenced the present action in the United States District Court for the District of Columbia to challenge the new turtle regulations and to enjoin enforcement of the prohibitions contained therein insofar as they are directed against commercial mariculture activities. The Environmental Defense Fund, Inc., Defenders of Wildlife, The Fund for Animals and World Wildlife Fund-U.S. sought leave to intervene as intervenor-defendants. We granted their motion for leave to intervene.

 Following a hearing on plaintiff's application for a temporary restraining order, USFWS and NMFS agreed to a voluntary stay of enforcement of the regulatory prohibitions against commercial mariculture activities pending reconsideration by the agencies of the sea turtle regulations pursuant to plaintiff's request, and, if reconsideration was denied, pending the outcome of judicial review of that denial by the United States District Court for the District of Columbia. See Order of September 6, 1978.

 On September 20, 1978, plaintiff submitted additional comments to USFWS and NMFS in support of its request for reconsideration. (R. XXIV A 22). On December 5, 1978, USFWS and NMFS issued a Decision Memorandum denying plaintiff's request to include in the sea turtle regulations an exception for ...

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