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AMERICAN CETACEAN SOCY. v. BALDRIGE

March 13, 1985

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



The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION

 CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE.

 INTRODUCTION

 Before the Court are the defendants' and defendant-intervenors' applications for a stay pending appeal of the Court' s March 5, 1985 Opinion and Order, 604 F. Supp. 1398, in this case. That decision was based on the Court's determination of the clear intent and design of Congress in passing 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), to create an automatic process whereby any foreign nation whaling in excess of established International Whaling Commission ("IWC") quotas would be certified as such to the President and would, as a sanction, have their fishing allocation in U.S. waters cut by at least 50 per cent. 16 U.S.C. § 1821(e)(2)(B). The Court found that the phrase "diminish the effectiveness of the Convention," which acts as the certification trigger in both Packwood-Magnuson and the earlier Pelly Amendment to the Fishermen's Protective Act of 1967, 22 U.S.C. § 1978, was sufficiently ambiguous as to require resort to the legislative history of both Amendments to determine the meaning of that phrase.

 A careful and thorough reading of that legislative history clearly showed that Congress, when enacting both Amendments, had specifically in mind the situation at issue in the present case, that of a foreign nation attempting to circumvent an international fisheries treaty by filing an objection to the established quota and fishing in excess of that quota. Packwood-Magnuson was enacted solely for the purpose of creating a mandatory and automatic sanction in the event a foreign nation should act to "diminish the effectiveness" of the IWC. The legislative history, as well as consistent administrative interpretation and action, establishes that any nation whaling in violation of an established IWC quota is necessarily "diminishing the effectiveness" of the International Convention for the Regulation of Whaling. The defendants were unable to cite any legislative history to the contrary. Indeed, as noted above, prior agency interpretation and action has been thoroughly consistent with the Court's analysis. Further, the Court determined that the intervenors' arguments about the legality of the quotas themselves under international law were irrelevant to the issue at bar, as the Amendments apply to any nation violating the IWC quotas, regardless of whether that nation is an IWC signatory or if it has filed a valid objection. Finally, the Court found that there had been no violation of the Administrative Procedure Act by the creation of the certification and sanction mechanism. There was no notice and hearing requirement under 5 U.S.C. § 556, as that section only sets forth the procedural rights that are available when a trial-type hearing is required by statute. Neither Pelly nor Packwood-Magnuson require such a hearing. Nor was the agency required to promulgate interpretive rules prior to exercising its duty to certify. SEC v. Chenery Corp., 332 U.S. 194, 91 L. Ed. 1995, 67 S. Ct. 1575 (1947).

 ANALYSIS

 I. THE DEFENDANTS HAVE FAILED TO MEET THE FOUR-PART TEST FOR GRANTING A STAY PENDING APPEAL, AND, THEREFORE, THE COURT WILL DENY BOTH APPLICATIONS.

 The applicants for a stay of the Court's March 5, 1985 Opinion and Order argue that the defendants and defendant-intervenors have passed the four-part test set forth in Virginia Petroleum Jobbers Association v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921 (D.C. Cir. 1958). That test requires the Court to weigh four factors in reaching its decision: (1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? (2) Has the petitioner shown that without such relief, it will be irreparably injured? (3) Would the issuance of a stay substantially harm other parties interested in the proceedings? (4) Where lies the public interest? Id. at 925.

 a) Petitioners Have Not Shown A Strong Likelihood Of Prevailing On The Merits.

 The first, and most important, hurdle which the petitioners must overcome is the requirement that they present a strong likelihood of prevailing on the merits of their appeal. "Without such a substantial indication of probable success, there would be no justification for the Court's intrusion into the ordinary processes of administration and judicial review." Virginia Petroleum Jobbers, supra at 925. Even should the petitioner show irreparable harm would result without the imposition of stay, if the requirement of a strong likelihood of success is not met, the petition will be denied. Blankenship v. Boyle, 145 U.S. App. D.C. 111, 447 F.2d 1280 (D.C. Cir. 1971). This does not mean that the petitioner's chances of success on appeal must appear as a "mathematical probability," but that the trial court, in the exercise of its discretion, must weigh the probability of success on appeal in a "balance of equities" with the other three factors. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 844 (D.C. Cir. 1977). The motion to stay may be granted, therefore, when a "serious legal question is presented, when little if any harm will befall other interested persons or the public and when denial of the order would inflict irreparable injury on the movant." Id.

 The Court finds that that petitioners have failed to meet this first test. As noted above, and discussed fully in the Court's Opinion, the undisputed facts and legislative history are overwhelmingly against their position in this case. Defendants were unable to cite any legislative history which contradicted the interpretation laid out by this Court's Opinion. Further, the petitioners position flies in the face of years of consistent agency interpretation that whaling in violation of an established IWC quota necessarily diminishes the effectiveness of the IWC. Even when weighed with the other three factors, petitioners have failed to present a serious legal question which would suggest to the Court a need to retain the status quo. For these, and all the other reasons set forth both above and in the Court's Opinion, this crucial requirement for interim relief has not been met.

 b) Petitioners Have Failed To Show Irreparable Harm.

 The second factor to be considered is whether the petitioners will suffer irreparable harm should the stay be denied. As noted above, however, even with a showing of irreparable injury, it is within the Court's discretion to deny the application should petitioners fail to make a strong showing of likelihood of success on appeal. Blankenship v. Boyle, supra. Here, petitioners have failed to show how they would be irreparably harmed by the denial of the stay. The federal petitioners argue that the denial of a stay would interfere with United States foreign policy by causing an abrogation of the November 13, 1984 exchange of letters between the Secretary of Commerce and the Japanese which gave rise to the present suit. They argue that efforts to resolve whaling issues with Japan and other nations in a non-confrontational manner, by using Packwood-Magnuson as a lever to extract commitments, will be irrevocably harmed. However, Congress did not intend Packwood-Magnuson to be used only as a threat, not to be put into practice unless it is the last resort with recalcitrant countries. Rather, it is clear that the Amendment was meant to be an automatic sanction, necessarily triggered by a violation of the IWC quota. Thus, the federal defendants may not lawfully use it as a bargaining chip in a situation such as is presented in this case. Further, to say that the credibility of the United States in the realm of foreign policy is the primary consideration to be protected is to actually argue against the stay itself. As the Japanese are well aware, this nation is a republic wherein the Executive Branch is not free to ignore the will of Congress or the requirements of the Constitution, and where the legality of Administration action is subject to judicial review. It would seem clear that there could be nothing more important to this nation's credibility and respect than its reputation as a government true to its own principles, and whose officials are not themselves above the law.

 Further, the intervenors argue that without a stay Japanese fishing and whaling interests will suffer. Although it is true that Japanese fishing interests will surely be injured, this factor alone does not require the Court to grant the stay. The Packwood-Magnuson sanction was designed to cause this very harm, so as to act as an incentive for foreign nations to respect the IWC quotas. Should the Japanese cease whaling and withdraw their objection to the general whaling moratorium, the Secretary of Commerce may withdraw certification and the sanctions will cease. 16 U.S.C. § 1821(e)(2)(B). Thus, even this harm is not irreparable. The Japanese whaling interests likewise will not be irreparably harmed by denial of the stay. The 1984-85 whaling season will end on April 1 of this year, and the next season will not begin for six months thereafter. Thus, there will be ...


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