d) The Public Interest Lies With Denying The Petitions For Stay Pending Appeal.
The fourth factor to be considered by the Court is where does the public interest lie. "The public interest is an uniquely important consideration in evaluating a request for [interim relief]." National Association of Farmworkers Organizations v. Marshall, 202 U.S. App. D.C. 317, 628 F.2d 604, 616 (D.C. Cir. 1980). As the petitioners have recognized, the public interest lies with the protection and preservation of the whales. Congress, through the enactment of both Pelly and Packwood-Magnuson, has established this public interest in strengthening and supporting the IWC, by creating a mechanism for enforcing compliance with IWC decisions. This public interest would be thwarted by granting a stay and allowing the Japanese to avoid the Congressionally mandated sanction for violating the IWC zero sperm whale quota.
The Court is not unaware of the defendants' responsibilities, including, but not limited to, that of the President to conduct our foreign policy and relations with foreign countries. The President is faced with a myriad of competing interests in his handling of foreign affairs. He must take into account not only international trade decisions, but also, in this instance, the viability of the IWC, the culture of the Japanese as it bears upon this matter, the effect the Court's decision might have upon future negotiations, the ability of our own fishing industry, and others, to export their products to Japan, and a whole panoply of problems which the Executive Branch must face in the conduct of its duties under the Constitution and the laws of the United States. However, the question before the Court, even though one of first impression, is actually a very narrow one, namely, whether the Secretary of Commerce has any discretion to determine if certification is required in the face of violations of the IWC quota. As previously indicated, this Court, in its March 5, 1985 Opinion, held that, by virtue of the Congressional enactment of the Pelly and Packwood-Magnuson Amendments, Congress has mandated the actions of the Secretary in this instance. Thus, in light of the undisputed facts of the case at bar, certification has been made a ministerial duty. If the Executive Branch cannot, because of Pelly and Packwood-Magnuson, deal effectively with the multitude of problems presented by the relationship between the United States and Japan, it should take such matter to the Congress promptly, on an emergency basis, and perhaps should have done so before now, rather than wait until after this suit was filed. To repeat, this case represents a clear mandate of Congress of which the Secretary of Commerce and his subordinates have long been aware, as they have been aware of the actions of the IWC. The facts of this case indicate that the agency has consistently acted in concert with the interpretation argued by the plaintiffs and accepted by this Court. Such Congressional and agency action has been in concert with the public interest in whale conservation. Thus, the public interest lies with denying the applications for a stay pending appeal.
To say that the denial of the stay "lets all the toothpaste out of the tube," and makes resolution of many other problems impossible, while adversely affecting the conduct of diplomacy is, to say the least, an overstatement. The will of the Congress must be obeyed, even though the United States, a signatory to the Convention, wishes to ignore the IWC's resolution as it pertains to Japan and thus frustrate that will. To ignore the foregoing facts and analysis would put the Court in the position of ignoring its duty to uphold the laws and the will of the first branch of our government, namely, the Congress of the United States, under Article III of our Constitution. Congress has been capable of acting quickly in an emergency before, and certainly could do so again, were the Executive willing to ask that the law be changed in view of the problems outlined in the Federal Defendants' Motion for Stay Pending Appeal. This Court is not unsympathetic to the plight of the Executive Branch, but having carefully considered this matter on the undisputed record and the law, the Court is confident that it has done its duty as a matter of law and is correct in its decision of March 5, 1985.
By virtue of the foregoing, and having carefully considered the applications of the defendants and defendant-intervenors, the Court concludes that it has no choice but to deny their request for a stay pending appeal. It is, therefore, by the Court, this 13 day of March, 1985
ORDERED that the defendants' and defendant-intervenors' applications for a stay pending appeal be, and the same are, hereby denied.
In accordance with the memorandum opinion filed of even date herewith, it is by the Court this 13th day of March, 1985
O5RDERED that the applications by the defendants and defendant-intervenors for a stay pending appeal of this Court's March 5, 1985 Opinion and Order, be, and the same are, hereby denied.
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