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GREENPEACE v. MOSBACHER

August 16, 1989

GREENPEACE, U.S.A., et al., Plaintiffs,
v.
ROBERT MOSBACHER, Secretary of Commerce, et al., Defendants



The opinion of the court was delivered by: REVERCOMB

 GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 The defendants have moved to dismiss this case, which involves a challenge to the decision of defendant Secretary of Commerce in 1988 not to "certify" the Republic of Iceland as a nation that hurts the cause of international whaling conservation, pursuant to the "Pelly Amendment," 22 U.S.C. § 1978 (a)(1). Such certification would, among other things, enable the President to impose import restrictions on the offending country. Id. § 1978(a)(3). The plaintiffs also seek to have the Court declare void the 1988 whaling agreement between the United States and Iceland because of the defendants' alleged failure to comply with requirements of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and the Endangered Species Act, 16 U.S.C. § 1531 et seq. Nearly a year after the case was filed, the defendants moved to dismiss on the ground that the claims have become moot. The plaintiffs opposed the motion; oral argument was heard on August 4, 1989. In this order, the Court grants the motion and dismisses the case.

 The international whaling community in recent years has been critical of Iceland's killing of whales, which Iceland states is part of a research program to study the relationship of whales to Iceland's fishery resources. Despite a non-binding resolution of the International Whaling Commission (IWC) in 1987 criticizing Iceland's program, the United States agreed during its discussions with the Icelandic government in Ottawa ("the Ottawa agreement") not to certify Iceland under the Pelly Amendment. In 1988, the IWC again adopted a resolution notifying Iceland that its program did not meet the Commission's criteria for scientific research. Icelandic officials then met with those of the United States, after which Iceland announced that it had lowered the number of whales that it would kill in its 1988 program. The United States Secretary of Commerce again decided not to certify Iceland under the Pelly Amendment. This suit, brought by more than a dozen environmental organizations, followed.

 At the 1989 meeting of the IWC this spring, the Commission gained concessions from Iceland and adopted a mild resolution that did not recommend that Iceland refuse permits for its program in 1989. Even more significantly, the Icelandic fisheries minister told the international body that Iceland in 1989 would complete its four-year whaling research program, would not kill any whales under its scientific program in 1990, and did not have plans to do so in later years. *fn1"

 The Doctrine of Mootness

 Because federal courts are limited to hearing only "cases" and "controversies," U.S. Const. art III § 2, the United States Supreme Court has ruled that federal courts may not judge abstract legal disputes without the existence of a present and live controversy, the resolution of which would have an actual effect on the parties. See, e.g., Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70-71, 78 L. Ed. 2d 58, 104 S. Ct. 373 (1983); California v. San Pablo & Tulare Railroad Co., 149 U.S. 308, 314, 37 L. Ed. 747, 13 S. Ct. 876 (1893). If a dispute is rendered academic because the relief sought can no longer be granted, the dispute is moot and the case must be dismissed. The movant has the burden of showing that a case is moot and must demonstrate that (1) there is no reasonable expectation that the alleged violation will recur and (2) that interim events have "completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 59 L. Ed. 2d 642, 99 S. Ct. 1379 (1979).

 Moreover, because certain important disputes remain "live" only for so short a time that a court cannot decide the issue before it becomes moot, courts have carved an exception to the mootness doctrine for disputes that are "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911); see Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The "capable of repetition" aspect makes the controversy over a legal point a real, non-moot issue for persons that are likely to be affected by the decision in the future.

 Applying the Mootness Test

 The Court concludes that the claims of the plaintiffs -- which surround the defendants' response to steps taken by Iceland and the IWC in 1988 -- have become moot by the activities of Iceland and the IWC in 1989.

 In regard to the claim that the Secretary of Commerce abused his discretion in deciding not to certify Iceland under the Pelly Amendment for its 1988 whaling program, the Court notes that the 1988 program has been completed, and that Iceland is now operating under its 1989 plan. The 1989 plan did not result in a negative recommendation from the IWC and is not challenged in this lawsuit. The relief requested by the plaintiff -- a declaratory judgment by the Court that the defendant abused its authority -- would be merely academic. The Pelly Amendment states that the Secretary of Commerce must certify a country when its nationals " are conducting" fishing operations that "diminish the effectiveness of an international fishery conservation program." 22 U.S.C. § 1978(a)(1) (emphasis added). Accordingly, even if the Court were to rule in favor of the plaintiff, the Secretary would not be empowered to certify Iceland for actions taken in the past but now abandoned. *fn2"

 Moreover, it cannot be said that the decision of the Secretary of Commerce with regard to Iceland's policies in 1988 still has effect today. The whaling operations of Iceland in 1989 appear to be substantially different from those in 1988. First, the 1989 program calls for the killing of a substantially fewer number of whales. Second, the 1989 program was presented along with a pledge that Iceland's lethal whaling would cease at the end of the year. Third, and perhaps most significantly, the IWC adopted a resolution that was milder than the 1988 resolution and that noted that Iceland had complied with many of the scientific requests of the IWC. Accordingly, because Iceland's 1989 program differs significantly from the 1988 program and because the IWC appears to have adopted a substantially different view of Iceland's operations, the Court concludes that the Secretary of Commerce's decision not to certify Iceland in 1988 cannot be said to still "have effect" after the start of the 1989 program.

 Similarly, the defendants' discussions and agreement with Iceland in 1988, which forms the basis of the second of the plaintiffs' two broad areas of claims, only concerned activities that took place under the 1988 program. The fact that the defendants allegedly failed to take certain steps before entering into the 1988 agreement has no practical effect today because the time period covered by the agreement is over. See Monzillo v. Biller, 237 U.S. App. D.C. 20, 735 F.2d 1456, 1459 (D.C. Cir. 1984) (when the activities to be covered by an injunction are completed, the case is moot). Because the Icelandic whaling situation has changed significantly since the filing of this suit, only claims challenging the reactions of the defendants since then present live controversies. The plaintiffs have not challenged actions in 1989. In sum, the Court concludes that the claims by ...


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