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.
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 the plaintiffs concerning actions of the defendants are moot because the actions no longer affect national policy in any real way and because a declaratory judgment that the actions were defective could have no effect.
The Exception to the Mootness Doctrine
The plaintiffs contend that even if their claims are considered to be moot, they still should be decided because the claims are capable of repetition yet evade review. The Court disagrees.
First, the Court concludes that the plaintiffs' claims do not evade review. The Pelly Amendment decisions mentioned in this were made came soon after meetings and resolutions of the IWC, which recently has met once a year.
A court is capable of ruling in a record review case in less than a year. See American Cetacean Society v. Baldridge, 604 F. Supp. 1398 (D.D.C. 1985) (decision in a Pelly Amendment case reached within a few months).
Judgment in the instant case was delayed because the plaintiffs sought and the Court granted extensive discovery, which is permitted only in the extraordinary agency record review case. See, e.g., Camp v. Pitts, 411 U.S. 138, 142, 36 L. Ed. 2d 106, 93 S. Ct. 1241 (1973) (general rule against developing a record during litigation involving record review); Dopico v. Goldschmidt, 687 F.2d 644, 654 (2d Cir. 1982) (a court should grant discovery when there are unusual indications that the agency's record is incomplete). The discovery in this case was permitted only because of the unusual allegation that the Secretary of Commerce improperly took into account national security concerns in his decision not to certify Iceland, in violation of the standard set forth in Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 233, 106 S. Ct. 2860, 92 L. Ed. 2d 166 (1986) (dictum stating that a decision based on factors other than conservation constitutes an abuse of discretion). It would not be expected that a decision in future Pelly Amendment cases would take as long as it has in this case.
Because the Court concludes that the claims do not evade review, it does not need to address fully whether they are capable of repetition. It is worth noting, however, that although Pelly Amendment disputes are likely to recur, it is questionable whether the exact issues in this case are truly are capable of repetition.
First, the plaintiffs allege that the Secretary of Commerce improperly considered non-conservation factors in its Pelly Amendment decision. Because this claim does not necessarily raise difficult legal questions -- it is fairly clear that the Secretary must base its decision on conservation factors alone, see Japan Whaling Association, 487 U.S. at 233 -- the primary inquiry would appear to be fact specific. The claims in this case depend on the specific details of Iceland's late-1980's whaling program, the IWC's response, and the defendant's scientific assessments and other decisions -- details that would limit the precedential of this case on future Pelly Amendment suits.
Furthermore, although the plaintiffs' claims regarding whether the defendants fulfilled the legal requirements in reaching the agreement with Iceland in 1988 would certainly involve some purely legal inquiry, rulings on these claims also would depend heavily on the specific facts of this case.
In sum, the Court concludes that the plaintiff's claims are do not evade review and that it is questionable whether the exact claims at issue here are capable of repetition.
In dismissing this case as moot, the Court has not judged the merits of the plaintiffs' claims. What the Court has concluded is that the debate over the aspects of Iceland's 1988 whaling program -- whether Iceland's actions that year hurt the international anti-whaling effort, whether the Secretary of Commerce's 1988 decision under the Pelly amendment was done in violation of law, and whether the 1988 agreement was legally defective -- are now moot because of a significant change in circumstances. Iceland in 1989 has adopted a new program, which was different enough from previous plans that the IWC decided not to recommend against it, and has stated that it will not whale in 1990 -- if true, a significant step forward for the whale preservation effort. The defendants may have certain responsibilities to act in response to the events of 1989, but such responses are not part of this suit. Because a review of the actions of the defendants in 1988 can no longer have a practical affect what is done in 1989 or future years, the review of the defendants' 1988 actions is moot.
Accordingly, it is ORDERED that the defendants' motion to dismiss is GRANTED and that the case is DISMISSED.