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 promises made in its letter to eventually come into voluntary compliance with the IWC sperm whale and moratorium decisions, Japan would not be acting in a manner which would diminish the effectiveness of the Convention, thus avoiding the triggering of Packwood-Magnuson sanctions.
The arrangement worked out between the Secretary and Japan would allow the Japanese whaling fleet to take up to 400 sperm whales during each of the 1984 and 1985 seasons, on the condition that they promise to cease all commercial sperm whaling at the end of the 1987 season. Japan in return agreed to withdraw its objection to the IWC quota table amendment which created the zero quota by no later than December 13, 1984. On December 11, 1984, the Japanese complied with this pledge and withdrew their objection to the amendment. The second part of the agreement was likewise conditioned on a promise by the Japanese. If the Japanese agreed to cease all commercial whaling by April 1, 1988, then they may take up to 200 sperm whales in each of the 1986 and 1987 seasons, and take other species subject to limits acceptable to the United States, to be determined at a later time. The Japanese must withdraw their objection to the general moratorium by April 1, 1985, in order to avoid Packwood-Magnuson certification.
Even as the negotiations which led to the exchange of letters was taking place, the Japanese whaling fleet was out at sea to catch whales. On November 11, 1984, several members of the plaintiff organizations observed and photographed the return and butchering of two sperm whales at Wadaura, Japan. (Affidavit of J. Campbell Snowden). By letter dated November 19, 1985, counsel for the plaintiffs brought to the attention of the Secretary the fact of continued sperm whaling by the Japanese in violation of the IWC quotas, and requested immediate certification. On November 30, 1984, the Secretary, through the General Counsel of the National Oceanic and Atmospheric Administration, responded that he would abide by the terms of the November 13 exchange of letters and would not certify Japan for the ongoing sperm whaling activities.
I. CERTIFICATION BY THE SECRETARY OF COMMERCE OF WHALING IN EXCESS OF THE IWC QUOTAS IS MANDATORY AND NONDISCRETIONARY.
When looking at the meaning of a statute, or a phrase therein, the Court must first look to the plain words of the statute. United States v. Apfelbaum, 445 U.S. 115, 121, 63 L. Ed. 2d 250, 100 S. Ct. 948 (1980); Touche Ross & Co. v. Redington, 442 U.S. 560, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979). The Pelly Amendment states unequivocably that "when the Secretary of Commerce finds" that a nation is acting so as to "diminish the effectiveness" of an international fisheries conservation agreement to which the United States is a party, he " shall certify such fact to the President." 22 U.S.C. § 1978(a)(2) (emphasis supplied). That this is a mandatory obligation of the Secretary's is borne out by the legislative history of the Pelly Amendment, which is replete with phrases such as "required to certify," "must certify," and "directs the Secretary to certify." See, 117 Cong. Rec. 34751 and 47053 (1971); H.R. Rep. No. 468, 92d Cong., 1st Sess. 6 (1971). The Packwood-Magnuson Amendment was enacted with much the same language. Once the Secretary has determined that a nation is acting so as to "diminish the effectiveness" of an international fisheries conservation agreement to which the United States is a party, he " shall certify such fact to the President." 22 U.S.C. § 1978(a)(2) (emphasis supplied). That this is a mandatory obligation of the Secretary's is borne out by the legislative history of the Pelly Amendment, which is replete with phrases such as "required to certify," "must certify," and "directs the Secretary to certify." See, 117 Cong. Rec. 34751 and 47053 (1971); H.R. Rep. No. 468, 92d Cong., 1st Sess. 6 (1971). The Packwood-Magnuson Amendment was enacted with much the same language. Once the Secretary has determined that a nation is acting so as to diminish the effectiveness of the International Whaling Convention, he must certify that fact to the President. 16 U.S.C. § 1821(e)(2)(A)(i). Neither statute provides a definition of this key phrase. Only when the words of the statute are ambiguous or unclear is it proper for a court to resort to legislative history to derive the intent of the lawmakers. United States v. Turkette, 452 U.S. 576, 580, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981); Petry v. Block, 225 U.S. App. D.C. 279, 697 F.2d 1169 (D.C. Cir. 1983). Because the phrase which triggers certification is not clearly defined in either statute, the Court will look to the legislative history of both Pelly and Packwood-Magnuson to determine its meaning.
The issue in this case is in actuality very simple. It is whether the Secretary has any discretion under the statute to determine what actions will trigger the automatic sanction. The defendants agree with the plaintiffs that the Secretary has a mandatory duty to certify once the circumstances which the phrase "diminishes the effectiveness of the Convention" seeks to define are found to be present. Rather, they argue that the determination of those circumstances has been left in the hands of the Secretary as a threshold discretionary decision to be made before certification becomes mandatory.
Plaintiffs, in their reply memorandum, concede that the Secretary may in fact have some discretion in this area, but that he may not utilize that discretion in the face of violations of IWC quotas, which the plaintiff contends to be the specific protection for which Packwood-Magnuson was created. They refer to numerous quotes of legislative history and a history of consistent agency interpretation as the basis for this argument.
a) Fishing In Violation Of Quotas Established Under An International Convention Was The Specific Wrong To Which Congress Intended Both Pelly And Packwood-Magnuson To Apply.
It appears clear from the legislative history that Congress in 1971 specifically had in mind the particular situation present in this case, of a member nation to an international fisheries agreement filing an objection which, although permitted by the terms of the agreement, rendered the agreement itself futile and ineffective. In enacting the Pelly Amendment, Congress cited, as a prime example of a situation which would call for certification, the flagrant overfishing of Atlantic salmon by nations that had filed timely objections to the international ban on such fishing. The objection procedures in use there are similar to that included in the Whaling Convention. Congressman Pelly explained that his Amendment was needed because "under the terms of the governing convention, individual nations are permitted to exempt themselves from the decisions of the commission." 117 Cong. Rec. 34751-52 (1971). These violations of the salmon quota were cited as the primary basis of the need for the United States to use its economic influence so as to reverse the trend. 117 Cong. Rec. 34754 (1971) (statement of Rep. Clausen). It is also apparent that the Pelly amendment was to apply to violations of the International Whaling Convention:
"The saga of the Atlantic salmon unfortunately is being repeated around the world with respect to many other creatures that inhabit the seas, most notably the whale. Commercial pressure has virtually wiped out the largest and most awesome species of whale. The International Whaling Convention, far from being a conservation measure, has proved to be a cloak for over-exploitation on a grand scale." 117 Cong. Rec. 34752 (1971) (statement of Rep. Pelly)