mandates of the MMPA. Here again, the statute is clear: the statutory embargo is overcome when an intermediary nation provides certification and proof that it has prohibited the importation of certain tuna and tuna products. The fact that a nation does not import, or has discontinued importing, tuna subject to the primary embargo does not carry with it any guarantee that the nation will not import this tuna in the future. The terms of the MMPA do not lend themselves to such simple circumvention. For this reason, the requirements of the secondary embargo are not overcome by evidence that a nation does not import tuna from embargoed nations or by evidence that the nation has discontinued the importation of tuna from embargoed nations.
(c). Plaintiffs' final argument is that, in lieu of the certification and proof requirement of the Act, the defends use a declaration of compliance obtained from the importer ensure that a given shipment of tuna does not contain tuna harvested with purse seines in the ETP. Defendants claim that this importer certification is a supplement to the certifications and evidence that they received from foreign governments.
Whether or not an importer certifies as to the origin of a tuna shipment is irrelevant to whether an intermediary nation has provided the necessary certification and proof to overcome the secondary embargo. The MMPA requires certification and proof from the government of the intermediary nation, not from a private party seeking to import the tuna. Unlike the direct embargo, where only tuna harvested with purse seines in the ETP was prohibited from entering the United States, as discussed supra, this secondary embargo prohibits the importation of all yellowfin tuna and tuna products unless these specific conditions are met.
Therefore, unless and until defendants obtain the required certification and proof from the government of an intermediary nation, defendants are in violation of the MMPA when they allow the importation of particular shipments of tuna, regardless of whether they have obtained importer certifications for this tuna.
The language of the MMPA is clear on its face. administrative agencies, such as defendants, must give effect to the clearly expressed meaning of the statute. Defendants' interpretation and implementation of the MMPA are contrary to the meaning of the statute. On this basis, we find that plaintiffs' have met their burden of demonstrating probable success on the merits of this case.
B. IRREPARABLE HARM
The defendants' failure to implement the secondary embargo, as set forth in the MMPA, results in irreparable injury. The defendants' nonenforcement of the secondary embargo creates a loophole in the primary embargo and this results in the continued economic viability of harmful fishing technologies. The continued use of these technologies results in the unnecessary deaths of marine mammals. This harm to marine mammals is exactly the type of harm which the statute was designed to prevent. As we noted in our Aug. 28, 1990 Order, the risk of unnecessary dolphin deaths and injury is a sufficient display of irreparable harm to justify the granting of a preliminary injunction. Earth Island, 746 F.2d at 975.
On these bases: that the plaintiffs' have demonstrated probable success on the merits with respect to their claims that the defendants have failed to implement the mandates of the MMPA's secondary embargo, and that the result of this failure is irreparable harm, we GRANT plaintiffs' motion for preliminary injunction.
III. PERMANENT INJUNCTION
A permanent injunction is appropriate where the plaintiffs prevail on the merits and demonstrate "the likelihood of substantial and immediate irreparable injury and the inadequacy of remedies at law." Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558 (9th Cir. 1990), citing LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985). A permanent injunction is available to combat a "persistent pattern of misconduct violative of plaintiffs' rights." Id. There must be "'something more than the mere possibility which serves to keep the case alive.'" Shanks v. City of Dallas, 752 F.2d 1092, 1096 (5th Cir. 1985); Ciba - Geigy, Corp. v. Bolar Pharmaceutical Co., Inc., 747 F.2d 844, 848, 224 U.S.P.Q. (BNA) 349 (3rd Cir. 1984).
In this case, plaintiffs have not yet prevailed on the merits. In addition, they have not proven that the misconduct will continue in the absence of permanent injunctive relief. Based on these circumstances, we DENY plaintiffs' motion for permanent injunction at this time.
IV. SUMMARY JUDGEMENT
Under Rule 56(c) of the Federal Rules of Civil Procedure, to prevail in a motion for summary judgement, the moving party must establish: (1) that there is "no genuine issue of material fact, and (2) that the moving party is entitled to judgment as a matter of law." British Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978); Fed. R. Civ. P. 56(c). As to matters for which the moving party will not have the burden of proof at trial, it must "point . . . out to the District Court that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The non-moving party must then make a showing sufficient to establish a genuine issue of fact with respect to that matter. Id. All reasonable inferences from the evidence are to be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). The moving party must show that no reasonable trier of fact could find other than for the moving party. Schwarzer, Summary Judgement under the Federal Rules, 99 F.R.D. 465, 487-488 (1984). In order to deny a motion for summary judgement, however, "the mere existence of a scintilla of evidence would be insufficient; there must be evidence on which the jury could reasonably find for [the non-moving party]." Liberty Lobby, 106 S. Ct. at 2512 .
Based on the existence of genuine issues of material fact, we DENY plaintiffs' motion for summary judgement. We take notice of the diplomatic communications of the State Department regarding the secondary embargo. Whether any of these communications contain evidence of the necessary certification of prohibition from a government official of an intermediary nation is a factual question which remains contested at this point.
After careful consideration, and upon good cause showing, IT IS HEREBY ORDERED that:
1) Subject to the exception for tuna currently in transit, discussed infra at 23, defendants, the Secretary of Commerce, the Administrator of the National Oceanic and Atmospheric Administration, the Assistant Administrator of the National Marine Fisheries Service, and the Secretary of the Treasury, are enjoined from permitting the importation into the United States of all yellowfin tuna and tuna products from any intermediary nation, until they obtain certification and proof that the intermediary nation has prohibited the importation of tuna which could not be exported directly to the United States under the provisions of the primary embargo;
2) Defendants are hereby instructed to implement forthwith a program to enforce the secondary embargo in accordance with the provisions of the MMPA as set forth in this Order. This plan shall include the systematic identification of all nations which import yellowfin tuna, and which export yellowfin tuna to the United States. In addition, this plan shall require that an official of the government of each of these identified nations provides certification and proof that that nation has acted to prohibit the importation of tuna that is barred from direct importation into the United States under the terms of the MMPA, including tuna and tuna products which were harvested by embargoed nations with purse seine nets in the eastern tropical Pacific Ocean;
3) We take note of the burden that this Order may impose upon American companies who have already purchased tuna through intermediary nations. At the same time, we take note of the fact that the secondary embargo provisions of the MMPA were enacted and placed on the books in 1988. This being the case, we are convinced that companies were on notice that the secondary embargo would ban the importation of tuna from noncompliant intermediary nations and that they should adjust their purchases accordingly. Nonetheless, in the interests of fairness, IT IS ORDERED: that this injunction shall not apply to yellowfin tuna and tuna products which are currently in transit as of the date of this order. It shall apply to all yellowfin tuna and tuna products exported after Thursday, January 30, 1992.
4) In accordance with the January 30, 1992, stipulation entered by the parties, for the purposes of this injunction, the following language shall constitute an acceptable form of "certification" and "reasonable proof" as those terms are used in the MMPA, 16 U.S.C. (a)(2)(c), and NMFS regulations, 50 C.F.R. 216.24(e)(ix):
An intermediary nation may provide a written legal instrument or document as evidence that (a) it has acted to ban the import into that nation of yellowfin tuna and tuna products containing yellowfin tuna that are banned from direct export to the United States and (b) that the legal action to prohibit the import of tuna is enforceable by that nation. This legal instrument or document may consist of a legislative enactment, an executive order or decree, or administrative action by a responsible government official from the intermediary nation, provided that the action is taken in accordance with that nation's system of law. A responsible government official from the intermediary nation shall forward a copy of that written instrument or document, along with a certification attesting that the document is accurate, through appropriate diplomatic channels to the Assistant Administrator for Fisheries in the Department of Commerce, who promptly will determine whether the document and certification constitute "reasonable proof" by the intermediary nation, as prescribed in the NMFS regulations. The Assistant Administrator promptly will publish the determination in the Federal Register and advise the United States Customs Service whether further exports from that intermediary nation shall be allowed. This language does not preclude proof of foreign law by any means authorized under Fed. R. Civ. P. 44(a)(2), (b), (c), or 44.1.
IT IS SO ORDERED
DATE: January 31, 1992
THELTON E. HENDERSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT