POSSIBILITY OF IRREPARABLE INJURY
Since plaintiffs have demonstrated a likelihood of success on the merits based upon one of the two provisions relied upon, for purposes of a preliminary injunction, this Court must determine whether plaintiffs have also demonstrated a possibility of irreparable injury. Miss World (UK) Ltd. v. Mrs. America Pageants, Inc., 856 F.2d 1445, 1448 (9th Cir. 1988).
Congress clearly intended the statutory scheme it established to reduce unnecessary dolphin deaths. The Secretary of Commerce's failure to enforce the statute's clear requirements interferes with this scheme, and therefore assures the continued slaughter of dolphins. The statute was intended to use access to the United States market as an incentive for foreign nations to reduce marine mammal deaths. The Secretary, contrary to Congressional intent, has not provided that incentive.
Absent a preliminary injunction there is a possibility of irreparable injury, in that foreign nations which continue to import yellowfin tuna into the United States may continue to engage in purse seine fishing practices, including "setting on dolphins," which result in the unnecessary deaths of dolphins, in clear contravention of the intent of the statute. This is exactly the type of injury which the statute was designed to prevent. This Court held in its February 15, 1989 Order in this case, granting plaintiffs' motion for preliminary injunction requiring 100% coverage in the United States purse seine tuna boat observer program, that the risk of unnecessary dolphin deaths and injury to the dolphin population was a sufficient display of the possibility of irreparable injury to justify the granting of a preliminary injunction. Other Courts have held similarly. In Balelo v. Baldrige, 724 F.2d 753, 768 (9th Cir. 1984), cert. den., 467 U.S. 1252, 104 S. Ct. 3536, 82 L. Ed. 2d 841 (1984), Judge Nelson stated in his concurring opinion, in consideration of various provisions of the MMPA designed to prevent marine mammal deaths, "if the world loses great diversity, it has truly suffered irreparable harm." Similarly, in Kokechik Fishermen's Ass'n v. Secretary of Commerce, 268 U.S. App. D.C. 116, 839 F.2d 795 (D.C. Cir. 1988), the D.C. Circuit Court affirmed the grant of a preliminary injunction predicated on the irreparable injury which might be inflicted upon marine mammals as a result of certain violations of the MMPA.
Simply put, the continued slaughter and destruction of these innocent victims of the economics of fishing constitutes an irreparable injury to us all, and certainly to the mammals whom Congress intended to protect. Indeed, for those species now threatened with extinction, the harm may be irreparable in the most extreme sense of that overused term.
Moreover, even on the alternative standard of requiring the balancing of hardship, plaintiffs prevail. As the Supreme Court stated in Amoco Production Co. v. Gambell, 480 U.S. 531, 545, 94 L. Ed. 2d 542, 107 S. Ct. 1396, 1404 (1987), "environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." The D.C. District Court relied upon this language from Amoco, in granting a preliminary injunction under the MMPA in Federation of Japan Salmon Fisheries v. Baldridge, 679 F. Supp. 37, 48 (D.D.C. 1987). As the Court noted, the purely economic harm suffered by foreign fishing interests as a result of the enforcement of the MMPA is outweighed by "the interests of the marine mammal populations at stake in this case. This is especially apparent when the public interest in protecting the environment is considered." Id. "The public interest does not lie in protecting the economic well-being of the Federation fishermen, but, as clearly required by the MMPA, in carrying out Congress' will in protecting the marine mammals and maintaining the health and stability of the marine ecosystem." Id. at 49.
For the foregoing reasons and after careful consideration of motions, legal memoranda, exhibits, and argument of the parties, and consistent with the accompanying memorandum Opinion, IT IS HEREBY ORDERED that:
1. Defendant Secretary of the Treasury, his successors, agents, employees and assigns, are enjoined and restrained from allowing the importation into the United States of commercial yellowfin tuna or yellowfin tuna products harvested with purse seines in the Eastern Tropical Pacific by any foreign nation, unless and until the Secretary of Commerce makes a positive finding based upon documentary evidence provided by the government of the exporting nation that the average rate of the incidental taking by vessels of such foreign nation is no more than 2.0 times that of United States vessels during the same period.
2. Defendants Secretary of Commerce, Administrator of the National Oceanic and Atmospheric Administration, and Assistant Administrator of the National Marine Fisheries Service, their successors, agents, employees and assigns, are restrained and enjoined from certifying any foreign nation, or extending the certification of any foreign nation, to import commercial yellowfin tuna or yellowfin tuna products harvested with purse seines in the Eastern Tropical Pacific by any foreign nation unless and until the Secretary of Commerce makes the affirmative findings set forth in Paragraph 1 above with respect to a foreign nation seeking to import such products.
3. Defendants Secretary of Commerce, Administrator of the National Oceanic and Atmospheric Administration, and Assistant Administrator of the National Marine Fisheries Service, their successors, agents, employees and assigns, shall immediately revoke any certification for any foreign nation currently importing commercial yellowfin tuna or yellowfin tuna products harvested with purse seines in the Eastern Tropical Pacific into the United States in contravention of the substantive and procedural requirements of the Marine Mammal Protection Act set forth in paragraph 1 above.
IT IS SO ORDERED.