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Earth Island Institute v. Albright

June 04, 1998

EARTH ISLAND INSTITUTE, TODD STEINER, THE AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, THE HUMANE SOCIETY OF THE UNITED STATES, THE SIERRA CLUB AND THE GEORGIA FISHERMAN'S ASSOCIATION, INC., PLAINTIFFS-APPELLEES,
v.
MADELEINE K. ALBRIGHT, SECRETARY OF STATE, ROBERT E. RUBIN, SECRETARY OF THE TREASURY, EILEEN V. CLAUSSEN, ASS'T SECRETARY OF STATE FOR THE BUREAU OF OCEANS, WILLIAM M. DALEY, SECRETARY OF COMMERCE AND ROLLAND A. SCHMITTEN, ASSISTANT ADMINISTRATOR FOR FISHERIES, DEFENDANTS-APPELLANTS. AND NATIONAL FISHERIES INSTITUTE INC., DEFENDANT-APPELLANT.



Before Rich, Newman, and Rader, Circuit Judges.

The opinion of the court was delivered by: Rader, Circuit Judge

Appealed from: United States Court of International Trade, Judge Thomas J. Aquilino, Jr.

Earth Island Institute (Earth Island) challenged the State Department's implementation of a 1989 law designed to ensure that shrimp entering the United States were caught in trawls equipped with turtle excluder devices (TEDs). Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1990, Pub. L. No. 101-162, § 609, 103 Stat. 988, 1037 (Nov. 21, 1989) (codified at 16 U.S.C. § 1537 note (1994)). On December 29, 1995, the Court of International Trade sustained Earth Island's contention that the statute applied to all nations, rather than only to countries in the Western Atlantic and the Caribbean. Accordingly, the trial court directed the State Department to issue new regulations. The State Department issued these regulations on April 19, 1996. On June 21, 1996, Earth Island filed a "motion to enforce the court's judgment," raising the issue of whether the new regulations complied with the Court of International Trade's 1995 ruling. On October 8, 1996, eighteen days after Earth Island unilaterally withdrew its motion, the trial court determined that the new regulations did not comply with its December 29, 1995 order. On November 25, 1996, the Court of International Trade denied the Government's request for a stay pending appeal and modified the October order. Because Earth Island withdrew its motion to enforce the December 29, 1995 final judgment and thereby deprived the trial court of jurisdiction, this court vacates the trial court's October 8, 1996 and November 25, 1996 orders.

I.

Five threatened or endangered species of sea turtle inhabit American coastal waters. One of the major causes of death for adult sea turtles is drowning in shrimp trawlers' nets. Under authority provided by the Endangered Species Act, 16 U.S.C. § 1533(d) (1994), the Department of Commerce promulgated regulations in 1987 requiring American shrimp trawlers to use TEDs on their nets or limit their tow times, 50 C.F.R. § 227.72(e) (1997).

American shrimpers argued that this requirement placed them at a competitive disadvantage with trawlers based in countries without a TED requirement. Advocates for protection of endangered species also noted that sea turtles migrate great distances, crossing many national boundaries. Therefore, regulations applicable only to shrimping operations conducted in domestic waters would fail to protect many turtles. In 1989, Congress enacted a prohibition on the import of shrimp caught with technology that might adversely affect sea turtles:

(b)(1) In general.--The importation of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely such species of sea turtles shall be prohibited not later than May 1, 1991, except as provided in paragraph (2).

(2) Certification procedure.--The ban on importation of shrimp or products from shrimp pursuant to paragraph (1) shall not apply if the President shall determine and certify to the Congress not later than May 1, 1991, and annually thereafter that--

(A) the government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and

(B) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or

(C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting.

16 U.S.C. § 1537 note (1994).

In 1991, the State Department issued regulations interpreting this ban on shrimp imports to cover shrimp taken without TEDs. See Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 56 Fed. Reg. 1051 (1991). These regulations also limited the enforcement of the regulation to the "wider Caribbean region." Id. In 1992, a coalition of environmental groups led by Earth Island challenged the limitation to the Caribbean region in the United States District Court for the Northern District of California. The Ninth Circuit affirmed that court's dismissal of the challenge for lack of jurisdiction. See Earth Island Inst. v. Christopher, 6 F.3d 648 (9th Cir. 1993).

Earth Island then challenged the regulations in the Court of International Trade. That court ruled that the statute contained no limitation to the wider Caribbean region. See Earth Island Inst. v. Christopher, 913 F. Supp. 559 (Ct. Int'l Trade 1995). The court ordered the State Department to embargo "shrimp or products of shrimp wherever harvested in the wild with commercial fishing technology which may affect adversely [the endangered] species of sea turtles" by no later than May 1, 1996. Id. at 580. The court later denied the ...


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