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EARTH ISLAND INST. v. MOSBACHER

January 31, 1992

EARTH ISLAND INSTITUTE, et. al., Plaintiffs,
v.
ROBERT A. MOSBACHER, Secretary of Commerce, et. al., Defendants.



The opinion of the court was delivered by: THELTON E. HENDERSON

ORDER

 On January 10, 1992 this Court issued its order regarding the secondary embargo provisions of the Marine Mammal Protection Act. On January 27, 1992, pursuant to Federal Defendants motion for Clarification, we issued an order amending our January 10, 1992 order. In light of a stipulation filed by the parties on January 30, 1992, we once again amend our original order as reflected herein. This Amended Order supercedes the January 10, 1992 and January 27, 1992 orders and constitutes the operative order in this case. This Amended Order does not alter the effect of the prior orders, but simply consolidates those orders.

 This matter came before the Court on plaintiffs' Motion for Summary Judgement, Preliminary and Permanent Injunction. The parties argued this motion before the Court on September 23, 1991. Appearances were made by Joshua Floum for plaintiffs and Charles Shockey for defendants.

 Plaintiffs brought this motion in order to enforce the secondary embargo provisions of the Marine Mammal Protection Act (MMPA). We believe that the proper interpretation of the secondary embargo is that intermediary nations must provide to the United States government, certification and proof that they have banned from importation into their countries the same commercial fish products that the MMPA bans from direct importation into the United States from harvesting nations. Failure to provide this certification and proof results in a ban of all yellowfin tuna and tuna products from those intermediary nations. For this reason, as discussed more fully below, we GRANT plaintiffs' motion for preliminary injunction, and we DENY plaintiffs' motion for summary judgement and plaintiffs' motion for permanent injunction.

 I. BACKGROUND

 Tuna fishermen kill dolphins when they use purse seine fishing nets in the eastern tropical Pacific Ocean (ETP). As a result of growing public sensitivity to this incidental killing of dolphins and other marine mammals, Congress enacted the Marine Mammal Protection Act 16 U.S.C. 1371 et. seq.. This case is a battle between plaintiffs -- the public interest group Earth Island Institute, the Marine Mammal Fund and David R. Brower (hereinafter collectively referred to as "Earth Island") and defendants -- the Secretary of Commerce, the Administrator of the National Oceanic and Atmospheric Administration, the Assistant Administrator of the National Marine Fisheries Service (NMFS), and the Secretary of the Treasury (hereinafter collectively referred to as "the Government") over the requisites of the MMPA.

 On August 28, 1990, this Court issued an order interpreting one provision of the commercial fish products ban created by the MMPA ("Aug. 28, 1990 Order"). This order enjoined the Secretary of the Treasury from allowing the importation of certain tuna products from nations which do not meet statutory measures of comparability in their incidental killing of dolphins during tuna fishing operations ("primary embargo").

 Congress enacted a second provision of the commercial fish ban to respond to a perceived need to prevent "tuna laundering" -- a situation in which an embargoed nation sells its tuna to an intermediary nation which, in turn, sells the otherwise banned tuna to the United States. This provision creates a secondary embargo against intermediary nations who wish to import tuna and tuna products into the United States ("secondary embargo").

 Earth Island now moves for a preliminary injunction, a permanent injunction and summary judgement in their favor, to compel the Government to comply with the mandates of the MMPA's secondary embargo provisions. Earth Island alleges that the nonenforcement of the secondary embargo is causing irreparable harm because there continues to be a market for tuna caught with purse seines by nations subject to the primary embargo and, as a result, unacceptable numbers of dolphins die.

 The relevant section of the Marine Mammal Protection Act, § 1371 (a)(2), reads as follows:

 (2) Marine mammals may be taken incidentally in the course of commercial fishing operations and permits may issue therefor under section 104 subject to regulations prescribed by the Secretary in accordance with section 103. In any event it shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching zero mortality and serious injury rate; provided that this goal shall be satisfied in the case of the incidental taking of marine mammals in the course of purse seine fishing for yellowfin tuna by a continuation of the application of the best marine mammal safety techniques and equipment that are economically and technologically practicable. The Secretary of the Treasury shall ban the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards. For the purposes of applying the preceding sentence, the Secretary --

 (A) [Text deleted]

 (B) [Text deleted]

 (C) shall require the government of any intermediary nation from which yellowfin tuna or tuna products will be exported to the United States to certify and provide reasonable proof that it has acted to prohibit the importation of such tuna and tuna products from any nation from which direct export to the United States of such tuna and tuna products is banned under this section within sixty days following the effective date of such ban on importation to the United States.

 Plaintiffs and defendants agree that this section of the MMPA creates both a primary and a secondary embargo. They disagree, however, over the scope of the two embargoes.

 Plaintiffs contend that the scope of the secondary embargo is broader than the scope of the primary embargo. Plaintiffs' position is that the primary embargo prohibits the importation of tuna and tuna products harvested with purse seine nets in the ETP from nations that fail to meet the comparability standards created by the MMPA ("embargoed nations"). In contrast, plaintiffs argue, the secondary embargo prohibits the importation of tuna and tuna products from intermediary nations, unless the Secretary obtains proof that the nation has acted to prohibit the importation of tuna and tuna products from embargoed nations.

 The rationale offered for the differing scopes of the two embargoes is that Congress had different purposes in mind in enacting the statutes. According to plaintiffs, the purpose behind the enactment of the primary ban in 1972 was to change foreign fishing methods in order to protect marine mammals. The secondary embargo, on the other hand, was enacted in 1988 to bolster the effectiveness of the primary embargo by preventing circumvention of this embargo through the use of intermediary nations.

 Earth Island argues that the defendants are not complying with the mandates of the MMPA. First, they contend that the Secretary of the Treasury is not obtaining the required proof from every intermediary nation, before allowing such nations to import tuna into the United States. Second, they argue that the National Marine Fisheries Service is banning only tuna caught with purse seines in the ETP under the secondary embargo, rather than all yellowfin tuna and tuna products. For these reasons, plaintiffs ask this Court to order defendants to revoke their current policies regarding the secondary embargo and to implement a comprehensive compliance program for the secondary embargo which would include the following elements: 1) systematic identification of all intermediary nations potentially subject to the secondary embargo, 2) determination, based on the proof provided by each intermediary nation, of whether that nation has prohibited the importation of all yellowfin tuna and tuna products from embargoed nations, and 3) a ban against the importation of all yellowfin tuna and tuna products from any identified intermediary nation for which such a determination cannot be made.

 Defendants respond that they have complied fully with the requirements of the MMPA in implementing the secondary embargo. They argue that the scope of the secondary embargo is the same as the scope of the primary ban: both embargoes extend only to yellowfin tuna harvested with purse seine nets in the ETP. In addition, defendants claim that plaintiffs' suggested scope of the secondary embargo violates the Congressional purpose of the embargo. This purpose, defendants suggest, was "to prevent imports of tuna and tuna products taken with methods that harm[ed] dolphins excessively, not to punish nations by imposing trade sanctions without just cause." Defendants' Memorandum in Opposition to Motion Partial Summary Judgement and Preliminary and Permanent Injunction, at 16. Finally, defendants claim that their implementation of the secondary embargo has been consistent with the MMPA and the orders of this Court.

 We will resolve this matter first, by analyzing the statutory language creating the secondary embargo, and then by examining the defendants' implementation of this embargo.

 A. PRELIMINARY INJUNCTION

 Plaintiffs move for a preliminary injunction against defendants to enjoin them from allowing the importation of tuna in violation of the provisions of the MMPA. The preliminary injunction is an equitable remedy. As such, it is an extraordinary remedy, and the burden is on the moving party to make a clear showing that money damages or other remedies at law are not adequate under the circumstances. Wright & Miller, Federal Practice and Procedure: Civil § 2948 (1973).

 For this Court to issue a preliminary injunction, the moving party must show either: (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and a balance of hardships tipping sharply in the plaintiff's favor. These are not 'two distinct tests but rather the opposite ends of a single continuum. Miss World (UK) Ltd. v. Miss America Pageants, Inc., 856 F.2d 1445, 1448, 8 U.S.P.Q.2D (BNA) 1237 (9th Cir. 1988). A showing of irreparable harm is a prerequisite for the issuance of a preliminary injunction in any case. Bannercraft Clothing Co. V. Renegotiation Bd., 151 App. D.C. 174, 466 F.2d 345 (D.C. Cir. 1972). The ...


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