The opinion of the court was delivered by: GESELL
This action, filed on June 15, 1984 by three animal welfare organizations, seeks to enjoin the killing of 22,000 subadult male seals scheduled to commence next Monday, July 2, 1984 on the Pribilof Islands in Alaska, as authorized by the Fur Seal Commission (Commission) established by the Interim Convention for the Conservation of the North Pacific Fur Seal, 8 U.S.T. 2283, to which the United States is a signatory. Tanadgusix, an Alaska native corporation which will undertake the killing pursuant to a contract with the Secretary of Commerce, has intervened as a defendant.
Plaintiffs argue that the planned killings would violate the Fur Seal Act (FSA), 16 U.S.C. sections 1151, et seq., as amended, the Marine Mammal Protection Act (MMPA), 16 U.S.C. sections 1361, et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. sections 4331, et seq. The case is now before the Court on plaintiffs' motion for preliminary injunction and intervening defendant's motion to dismiss. A hearing was held on these motions on June 26, 1984, and all issues have been fully briefed. At that hearing the Court indicated that it might consolidate the hearing on plaintiffs' motion with a trial on the merits pursuant to F.R.Civ.P. 65(b)(2), and the Court has done so. Because the Court concludes that the actions of the Secretary are not inconsistent with the statutes cited, plaintiffs' motion for preliminary injunction must be denied and judgment entered in favor of defendants on the merits.
Under the Convention, the Commission determines each year, after scientific review, the number of seals which may be killed at rookeries by the signatory nations consistent with the Convention's goal of maintaining a stable long-term seal population. The United States has been authorized to kill 22,000 subadult male seals during the coming season, although it is not legally bound to do so. Thirty percent of the pelts from any seals killed are to be turned over by the United States to other signatory countries under the terms of the Convention.
The Secretary of Commerce (Secretary) has announced that the United States intends to kill the full 22,000 seals as authorized, and has contracted with Tanadgusix to undertake the seal kill pursuant to the Fur Seal Act.
Plaintiffs claim that the Fur Seal Act is being violated because the Secretary has failed to promulgate regulations governing the seal kill authorized by section 105(a) of the FSA, 16 U.S.C. section 1155(a), and because that section allows seal killings only if such killings are necessary for the "conservation, management, and protection of the fur seal population" or are necessary "to carry out the provisions of the Convention." Section 105(a) states:
The Secretary shall prescribe such regulations with respect to the taking of fur seals on the Pribilof Islands and on lands subject to the jurisdiction of the United States as he deems necessary and appropriate for the conservation, management, and protection of the fur seal population, and to dispose of any fur seals seized or forfeited pursuant to this chapter, and to carry out the provisions of the Convention, and shall deliver to authorized agents of the parties such fur seal skins as the parties are entitled to under the Convention. [Emphasis added].
It is readily apparent from the plain language of the statute that the Secretary need only issue regulations "as he deems necessary" and is not required to do so. The Secretary has offered an adequate explanation for why he does not consider regulations to be necessary. Moreover, it is also clear, both from the statute itself and from the background of the 1980 amendments to the FSA which added this provision, that the language referring to "the conservation, management, and protection of the fur seal population" is intended to guide the issuance of regulations and not to place substantive restrictions on the circumstances under which seals may or may not be killed. Plaintiffs have thus failed to show that the planned seal kill violates the FSA.
Marine Mammal Protection Act
It is apparent that under the present conditions the substantive terms of the MMPA contravene the Convention and the FSA. The Convention clearly grants the United States the right to conduct the planned seal kill and, while the United States is not absolutely required to do so, the general purpose and scheme of the Convention contemplates that it would undertake the kill and share the pelts obtained with Canada and Japan. Moreover, 16 U.S.C. section 1378(b)(1)(B) of the MMPA, which directs the Secretary of State to consider what modifications to either the MMPA or the Convention should be made "to make the Convention and this chapter consistent with each other," also seems to recognize that a conflict exists between the Convention and the MMPA.
In addition, the Fur Seal Act specifically authorizes the Secretary of State, with the concurrence of the Secretary of Commerce, "to accept or reject, on behalf of the United States, recommendations made by the Commission [as to the number of seals to be taken] pursuant to article V of the Convention," 16 U.S.C. section 1158, and the Secretary of State has in fact already accepted those recommendations, placing the operation of the Convention in full effect as to the 1984 killings. This provision, which was in effect prior to passage of the MMPA and has since been reconsidered and reenacted in the 1983 amendments to the FSA, does not appear to contemplate that the discretion vested in the Secretaries of State and Commerce in making such a foreign policy decision was to be constrained by the strictures of the MMPA.
The Court concludes, therefore, that the substantive provisions of the MMPA contravene the Convention with respect to the particular killings at issue here, and that hence under section 1383 the Convention takes precedence. The actions of the Secretary therefore do not violate ...