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AMERICAN CETACEAN SOCY. v. BALDRIDGE

March 5, 1985

AMERICAN CETACEAN SOCIETY, et al., Plaintiffs,
v.
MALCOLM BALDRIDGE, et al., Defendants, and THE JAPANESE WHALING ASSOCIATION & THE JAPANESE FISHING ASSOCIATION, Defendant-Intervenors



The opinion of the court was delivered by: RICHEY

OPINION AND ORDER

 CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE.

 Plaintiffs contend that Secretary Baldridge violated a clear non-discretionary duty when he failed to certify to the President that Japanese nationals were engaged in sperm whaling in violation of the International Whaling Commission's (hereinafter "IWC") zero sperm whale quota for the 1984-85 season. Plaintiffs seek a declaratory judgment from this Court that such failure to certify was in violation of the Packwood-Magnuson Amendment to the Magnuson Fishery Conservation and Management Act of 1976. 16 U.S.C. §§ 1821(e)(2)(A)(i) and (B). Plaintiffs also request that the Court declare and adjudge that such whaling activities by any nation in excess of the IWC quota is necessarily an activity which "diminishes the effectiveness" of the International Convention for the Regulation of Whaling (hereinafter "the Convention"), the multi-lateral treaty which the IWC oversees.

 Additionally, plaintiffs seek a permanent injunction from this Court enjoining both Secretaries Baldrige and Schultz, and their subordinates, from agreeing not to certify, and from failing to certify, any whaling activities by nationals of Japan that violate IWC whaling quotas, and from agreeing not to reduce, and from failing to reduce, Japanese fishing quotas in consequence of such certification.

 The defendants argue that Secretary Baldridge's actions which give rise to this suit were within the scope of his discretion to determine what activities diminished the effectiveness of the Convention, and that his decision not to certify was actually designed to insure its continued effectiveness. Therefore, the defendants argue, the Packwood-Magnuson automatic sanction was never triggered. The JWA/JFA argue that the Japanese were never technically in violation of the Convention, and, therefore, the Japanese cannot be certified. In addition, they raise other arguments dealing with what they perceive as irregularities under the Administrative Procedure Act 5 U.S.C. § 551, et seq. They have also filed a motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. In this motion, the intervenors argue that plaintiffs fail to meet the appropriate standard for a permanent injunction in the nature of mandamus and that therefore the complaint cannot stand.

 For the reasons set forth below, the Court denies the Motion to Dismiss, and grants the Plaintiffs' Motion for Summary Judgment.

 FACTUAL AND STATUTORY BACKGROUND

 For the past thirty five years, the international whaling industry has brought about the systematic devastation of the major whaling populations on this planet. Although a central focus of many cultures over the past centuries, whaling has gone beyond cultural identity and into the realm of international business. The whale was originally hunted for its oil, its ivory teeth and its meat. It was hunted in small numbers, as the technology of the early whalers limited their ability to catch more than a few whales each season. This has changed drastically, however, since the end of World War II. Improvements in technology, such as larger and stronger whaling ships and explosive harpoons, made whaling as big business both practical and profitable. New uses for whale products began to be discovered. The whale oil, once used for heat and light, is now used as a high-grade industrial lubricant. The meat, only rarely used for human consumption, is a major ingredient in pet food and agricultural feed. The whalers, unrestrained by any regulations regarding their activities, took as many whales as they could find. By the early 1960's, blue and humpback whales had been virtually exterminated, driven to "commercial extinction," where there were too few remaining to make hunting them worthwhile. (Garrett Affidavit at 1). By the early 1970's, the major populations of large baleen whales in the Antarctic and North Pacific oceans had been destroyed. Fin and sei whale populations had been likewise reduced to small percentages of their original levels. Id. The whaling industry then refocused its efforts on the remaining available species: the sperm whale, the Bryde's whale, and the smaller minke whale.

 The International Convention for the Regulation of Whaling, which created the IWC, arose as a result of the recognized need for some kind of coordinated regulation of international whaling. The Convention was signed in 1946 and entered into force on November 10, 1948. 62 Stat. 1716, T.I.A.S. No. 1849. Under the terms of the Convention, global annual whaling quotas and regulations restricting whaling methods are to be established at annual and special meetings of the IWC. Convention, Art. V para. 1. Originally, the IWC was used as a vehicle for the control of whale oil prices. However, since 1972 it has steadily evolved as an agency promoting conservation rather than commercialization of whales.

 a) The Pelly Amendment

 The United States government was a signatory of the Convention and is a member nation in the IWC. It has consistently taken the role of enforcing the quotas as set by the IWC with the threat of economic sanctions against countries which fail to adhere to the IWC limits. In 1971, Congress enacted the Pelly Amendment to the Fishermen's Protective Act of 1967, 22 U.S.C. § 1978, for the express purpose of creating a sanction against countries that refused to conduct their fishing operations consistent with international fishery conservation programs. The Pelly Amendment states that when the Secretary of Commerce determines that nationals of a foreign country are conducting fishing operations which "diminish the effectiveness" of any international fisheries conservation program to which the United States is a party, he shall so certify to the President. 22 U.S.C. § 1978(a)(1). The President may then direct the Secretary of the Treasury to prohibit the importation of fish products of the offending nation. 22 U.S.C. § 1978(a)(4). Within sixty days of certification, the President is required to notify Congress of any action taken as a result of such certification, or of his reasons for taking no action or taking only limited action against the offending nation. 22 U.S.C. § 1978(b).

 On November 12, 1974, the Secretary of Commerce certified both Japan and the Soviet Union under the Pelly Amendment. The IWC had set a quota of 5,000 Antarctic minke whales for the 1973-74 season. Both nations had objected to the quota under the procedures set forth in the Convention. The Secretary determined, however, that when the Soviet Union took 4,000 minke whales and Japan took 3,713, that both countries had acted to "diminish the effectiveness" of the Convention. On January 19, 1975, former President Gerald R. Ford made it clear that any taking of whales in excess of IWC quotas would trigger the Pelly Amendment certification, saying that "exceeding the quotas will diminish the effectiveness of the program." White House Press Release, January 17, 1975. (Plaintiff's Brief at 8). The imposition of sanctions was forestalled, however, when both Japan and the Soviet Union then agreed to accept the 1974-75 quotas. Id.

 The Pelly Amendment has been brought into play several times since. On December 14, 1978, the Secretary of Commerce certified Chile, Peru and the Republic of Korea for exceeding IWC quotas. At that time none of these nations were members of the IWC or signatories of the Convention. Within sixty days after certification, all three had either joined the IWC or committed to do so by the next scheduled annual meeting. Again, in 1979, the threatened certification of Spain led that country to agree to adhere to the IWC fin whale quota for that year, despite having filed a formal objection. Preparations for the 34th International Whaling Commission Meeting: Hearings before the Subcomm. Human Rights and International Organizations of the House Comm. on Foreign Affairs, 97th Cong., 2d Sess. 11 (1982) (Congressional Research Service Report).

 b) The Packwood-Magnuson Amendment

 In 1979, Congress determined that the Pelly Amendment, however effective, was inadequate to the task of persuading commercial whaling nations to adhere to IWC decisions. Accordingly, Congress enacted the Packwood-Magnuson Amendment to the Magnuson Fishery Conservation and Management Act of 1976 (hereinafter "Packwood-Magnuson"). 16 U.S.C. § 1821. That Act has, since 1976, regulated commercial fishing within the United States 200-mile fishery conservation zone. It provides for the Secretary of State to grant foreign nations annual allocations of allowable levels of fishing within the 200-mile zone. Id.

 Packwood-Magnuson amended that Act to provide that the Secretary of Commerce would have the responsibility to ascertain and certify whether "nationals of a foreign country, directly or indirectly, are conducting fishing operations or engaged in trade or taking which diminishes the effectiveness of the International Convention for the Regulation of Whaling." 16 U.S.C. § 1821(e)(2)(A)(i). Upon such certification, the Amendment mandates that the fishing allocation of the offending nation "shall be reduced by the Secretary of State, in consultation with the Secretary [of Commerce], by not less than 50 percent." 16 U.S.C. § 1821(e)(2)(B). If the certification by the Secretary of Commerce is terminated within one year, the suspended allocation may be reinstated. 16 U.S.C. § 1821(e)(2)(C)(iii). If the certification is not terminated within one year, the suspended allocation is permanently rescinded and the Secretary of State "may not make any allocation to that country . . . until the certification is terminated." 16 U.S.C. § 1821(e)(2)(D).

 The threat of automatic sanctions under Packwood-Magnuson has proved to be an effective incentive in the enforcement of the IWC regulations and quotas. In 1980, both the Republic of Korea and Taiwan agreed to adhere to IWC regulations not directly involving whaling quotas, when faced with the possibility of Packwood-Magnuson sanctions. Preparations for the 34th International Whaling Commission Meeting, supra, at 11. The former United States representative to the IWC views the automatic sanctions under Packwood-Magnuson to be the foundation upon which the present system of international whaling controls has been built. (Affidavit of Thomas Garrett para. 9).

 c) The IWC whaling quotas

 In 1981 the IWC voted to amend the quota tables to provide that no sperm whales could be taken in any future year unless a specific quota was established by the IWC for that year. The vote on that issue was 25 to 1, with Japan casting the lone opposition vote. Review of the 33rd International Whaling Committee Meeting: Hearing before the Subcomm. on Human Rights and International Organizations of the House Comm. on Foreign Affairs, 97th Cong., 1st Sess. 11 (1981) (Staff Report).

 At the next annual meeting, in July, 1982, the IWC voted to impose a five year moratorium on all commercial whaling in order to allow depleted whale stocks to regenerate, and for scientists to have an opportunity to gather more extensive data on the populations and distributions of whale stocks to determine whether commercial whaling could be safely resumed at some future date. Review of the 34th International Whaling Commission Meeting, 97th Cong., 2d Sess. 17-19 (1982) (Staff Report). Of the member nations of the IWC, only Japan, the Soviet Union and Norway filed objections to the moratorium.

 In July 1982, Japan requested, and was granted, two additional years of sperm whaling through the 1983-84 season. This additional grant was part of a compromise effort to insure passage of the general whaling moratorium to begin in 1986. No sperm whale quota was established by the IWC for the 1984-85 season. Thus, under the terms of the 1981 amendment to the quota tables, any sperm whaling during the 1984-85 season would be in violation of the zero quota which resulted.

 d) The November 13, 1984 exchange of letters

 The Japanese government, apparently well aware of the threat of Packwood-Magnuson sanctions, entered into negotiations with the United States Commissioner to the IWC. On November 13, 1984, the Department of Commerce released copies of an exchange of correspondence between Yasushi Murazumi, Japanese Charge d'Affaires in Washington, D.C., and Secretary Baldridge. Attached to the letter from Murazumi was a document entitled "Summary of Discussions on Commercial Sperm Whaling in the Western Division Stock of the North Pacific, November 1-12, 1984, Washington, D.C." This document described the negotiations between Mr. John V. Byrne, the U.S. Commissioner to the IWC, and Mr. Hiroya Sano, Director General, Fisheries Agency, Ministry of Agriculture, Forestry and Fisheries of Japan. Later the same day, the Secretary responded by letter to Mr. Murazumi in which the Secretary pledged not to certify additional sperm whaling by Japan during the 1984-85 and 1985-86 seasons, provided that the Japanese took the steps outlined in its letter. Specifically, the Secretary concluded that if Japan followed the ...


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