Kokechik Fishermen's Association v. Secretary of Commerce Appeal of Federation of Japan Salmon Fisheries Cooperative Association

STARR: Circuit Judge,

dissenting:

This case arises out of the faraway, frigid waters of the Bering Sea. There, fish abound in waters where interests of the United States, the Soviet Union, and Japan coincide and, at times, conflict. Not only are the great commercial fishing powers present, with motherships and fleets of catcher boats plying their trade; also present are creatures, some based on land, some at sea, known as marine mammals. Marine mammals, like mother ships and catcher boats, fish for their living as well. And in the robust waters of the North country, commercial fishing nets and marine mammals at times, indeed inevitably, come into contact. The issue before us concerns the welfare of marine mammals caught up, quite literally, in the nets of ships of commerce and trade.

Notwithstanding the unusual setting of this case, the question presented to us is the workaday one of statutory construction. In rejecting the common-sense reading of the statute adopted by the agency charged with administering it, the court reaches a result that, in my judgment, Congress never contemplated. In my view, today’s decision is unsupported by the text, structure, or legislative history of the statute. I therefore respectfully dissent.

I

Under now-familiar principles, the task before us in construing a statute administered by an agency of the Executive Branch is clear. First, if Congress has addressed the precise issue in question, and the intent of Congress is clear, it is the judiciary’s duty to give effect to that Congressional determination. See NLRB v. United Food and Commercial Workers Union, — U.S. —, 108 S.Ct. 413, 421, 98 L.Ed.2d 429 (1987); Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 106 S.Ct. 2860, 2867, 92 L.Ed.2d 166 (1986); Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). If, on the other hand, the statute is silent or amibiguous with respect to the inquiry at issue, we are obliged under settled principles of law to defer to the agency’s construction, if reasonable, of that statute. United Food, 108 S.Ct. at 421; Japan Whaling Ass’n, 106 S.Ct. at 2868; Chevron, 467 U.S. at 844, 104 S.Ct. at 2782.

It is abundantly clear that Congress did not speak in so many words to the precise issue that the court decides today: whether the National Oceanic and Atmospheric Administration (“NOAA”), which is charged with administering the Marine Mammal Protection Act, 16 U.S.C. § 1361 (1982) et seq. (“MMPA”), is prevented from issuing a permit for one species because other species, for which a permit cannot lawfully issue, would inevitably be taken. Although the text of the statute does not provide a definitive answer to this question, the overall statutory scheme contemplates precisely the construction given by NOAA. In the MMPA, Congress created a species-based permit system that would enable fishing operations to carry on. The court’s critical interpretive error, I believe, lies in its failure to give meaningful content to the species-based permit system established by Congress as an essential part of the legislative compromise embodied in the MMPA, a compromise evidenced by, on the one hand, the moratorium on the taking of marine mammals and, on the other hand, the system of permits for taking marine mammals in the course of fishing operations. By virtue of its interpretive approach, the court ultimately embraces a result that is so counter-intuitive that one must in conscience wonder whether a reasonable Congress would have desired the odd outcome of calling a complete halt to important fishing operations with clear foreign policy im*804plications.1

A

In the same section of the MMPA enacting the moratorium on takings, section 1371(a)(2) makes the permit system an integral part of the overall statutory scheme:

Marine mammals may be taken incidentally in the course of commercial fishing operations and permits may be issued therefor under section 1374 of-this title subject to regulations prescribed by the Secretary in accordance with section 1373 of this title.

This language contemplates the incidental taking of marine mammals as long as certain statutory requirements are met. The noncasual reader will have noticed that section 1371(a)(2) makes reference to two other sections of the MMPA: section 1373, which charges NOAA with developing regulations governing the taking of marine mammals; and section 1374, which confers authority on NOAA to issue permits in accordance with certain statutory guidelines.

In sections 1373 and 1374, the statute plainly envisions that NOAA will issue permits on a species-by-species basis. For example, section 1373(a) directs NOAA to “prescribe ... regulations with respect to the taking ... of animals from each species of marine mammals.... ” Section 1374(b)(2)(A) provides that “[a]ny permit issued under this section shall specify the number and kind of animals which are authorized to be taken or imported.” Finally, section 1373(c) authorizes NOAA to promulgate regulations that restrict the age, size, or sex of the marine mammals for which a permit may issue. Fishing operators, even experienced ones, obviously are not endowed with sufficient prescience to know in advance the age, size, or sex of the mammals they will take in the course of their operations; as a result, a moment’s reflection suggests that this provision necessarily means that operators will take some marine mammals even though a permit for that taking has not issued. This is, of course, precisely how NOAA has interpreted the measure.2

The record thus suggests that Congress contemplated a situation in which NOAA could lawfully issue a permit for one species while at the same time denying a permit for another species that would inevitably be taken in the same fishing activity because the applicant had failed to jump through one of the MMPA-erected hoops, see supra note 2. In fact, in issuing its first General Permit to the Federation of Japan Salmon Fisheries Cooperative Association (“Federation”), NOAA observed that “the Japanese salmon fishery expects to take incidentally on a yearly basis in the U.S. [Exclusive Economic Zone (“EEZ”)]” 5,500 Dali porpoise, 50 harbor porpoise, 25 Pacific white-sided dolphins, 25 killer whales, 25 Steller sea lions, and 450 northern fur seals. 46 Fed.Reg. 27057 (1981), Appellant App. at 402. Even though the *805agency recognized that all these various species of mammals would be taken in the Federation’s operations,3 NOAA issued permits for only three species: Dali porpoise, Steller sea lions, and northern fur seals. NOAA explained that it had not yet been able to conduct the formal review necessary for a permit to issue under the Act for the other species, and that the “permit covering harbor porpoise, Pacific white-sided dolphin and killer whale remains unprocessed.” Id. Instead, NOAA made clear, “[t]he permit and accompanying regulations allow no takings of harbor porpoise, Pacific white-sided dolphin, or killer whale. Takings of these marine mammals are in violation of and subject to prosecution under the MMPA.” Id. at 27058, Appellant App. at 403. It is this permit, which assumed that other, nonper-mitted mammals would also be taken (notwithstanding the moratorium), that Congress itself extended in amending the North Pacific Fisheries Act of 1954, 16 U.S.C. § 1021 et seq. (“NPFA”). History thus teaches us that both Congress and the agency charged with administering the MMPA contemplated that permits would be issued in circumstances in which nonper-mitted takings would inevitably occur.4

Indeed, the legislative history of the statute buttresses the view that Congress considered and rejected a blanket prohibition on marine mammal takings in favor of a system of regulated takings within a permit structure. In debates on the Senate floor, Senator Ernest Hollings, in his capacity as Chairman of the Subcommittee on Ocean and Atmosphere of the Committee on Commerce and manager of the bill on the Senate floor, rejected the call for an “immediate ban on the taking of any and all marine mammals.” 118 Cong.Rec. 25253 (July 25, 1972). Subsequently, in oversight hearings two years after the Act’s passage, Congressman Dingell reaffirmed that “[i]t was not our intention *806that commercial fishing would be brought to a halt.” Hearings on Oversight of the Marine Mammal Protection Act of 1972 before the Subcommittee on Fisheries and Wildlife Conservation and the Environment, 93d Cong., 2d Sess., ser. no. 93-24, at 22 (1974).

In light of this history, it is evident that the court has today created another hoop, nowhere to be found in the statute, through which NOAA must jump before it can issue a permit for the taking of marine mammals.5 But this hoop is singular in its difficulty. The court’s construction of the MMPA effectively requires that no permit for any species issue until a permit for all mammals likely to be entangled can lawfully issue. This far-reaching construction fails, I believe, to account for NOAA’s obligation under the Act to fashion a workable permit system on a species-by-species basis.

B

Two other factors support the view that Congress intended to achieve protection of marine mammals other than by a blanket prohibition inexorably halting all fishing operations. First, the MMPA clearly envisioned a gradual reduction in takings through new techniques and enforcement mechanisms, see e.g., § 1380 (research grants), § 1381 (fishing gear development), § 1378 (international program), while permitting underlying fishing activity to continue. Second, the Federation is allowed to fish in waters subject to U.S. jurisdiction (the U.S. EEZ) pursuant to U.S. treaty obligations embodied in the International Convention for the High Seas Fisheries of the North Pacific Ocean (“INPFC”), May 9, 1952, 4 U.S.T. 380, T.I.A.S. No. 2786. The treaty, as amended in 1978, 30 U.S.T. 1095, T.I.A.S. No. 9242, provides for an area of approximately 775,000 square miles outside the U.S. EEZ in which North American-origin salmon and marine mammals are protected. The treaty allows, in return, Japanese salmon fishing operations within an area of approximately 80,000 square miles inside the U.S. EEZ where the Japanese catch is primarily salmon of Asian origin. See Brief for the Federal Appellants at 4. Although the Federation’s fishing activity within the U.S. EEZ is subject to regulation under the MMPA, Congress clearly envisioned the continuation of that fishing activity within the regulatory framework established by the statute.

In sum, the MMPA did not prohibit salmon gillnet fishing; rather, it allowed fishing to continue while at the same time placing a prohibition on marine mammal takings except to the extent that permits could be issued in accordance with statutory criteria for each species. Congress in fact contemplated precisely the anomalous situation that the court finds troubling. Maj. op. at 801-802. At the very least, Congress enacted a statutory scheme that places in tension the goal of total elimination of marine mammal takings and the need for a workable permit system administered in accordance with statutory criteria. Chevron and its progeny teach that we should defer to the reasonable resolution of that tension by the agency charged by Congress with the task of resolving it.

II

In my view, NOAA’s interpretation and administration of the MMPA is eminently reasonable. The Center for Environmental Education (“CEE”) reasons, however, that NOAA’s interpretation of the MMPA “create[s] an entire class of unreviewable takings fully outside the regulatory structure of the MMPA” because “the Secretary’s approach allows takings whether or not the statutory requirements are met.” CEE Brief at 33. The argument is essentially that once incidental takings are “allowed,” if not “permitted,” then one is entirely outside the statutory scheme and its rigorous criteria aimed at guiding permit issuance.

*807But NOAA has administered the Act in no such manner. Although rejecting the AU’s recommendation to issue a permit for the taking of fur seals, NOAA explicitly credited the AU’s finding that the number of seals that would nevertheless be unavoidably taken would not adversely affect that species’ population. Decision of the Under Secretary at 2, 10, Appellant App. at 128, 136. As we indicated above, note 4 supra, NOAA took cognizance of the fact that the population of Commander Islands fur seals is subject to a managed commercial harvest of 4,000 to 5,500 animals per year. NOAA’s determination is also supported by its estimate that native Alaskans would take several thousand Pribilof Islands fur seals for subsistence in 1987. 52 Fed.Reg. 26479 (July 15, 1987) (final notice); 52 Fed.Reg. 17307 (May 7, 1987) (notice and request for comment). NOAA concluded, reasonably, that the subsistence harvests of 1985 and 1986 had no effect on the growth of the population to higher levels. 52 Fed.Reg. at 26482. It was therefore reasonable for NOAA to conclude that the possible taking of only 45 fur seals per year — with a mortality rate of perhaps 10 of those — by the Federation was entirely consistent with the overall policies and purposes of the MMPA.

Ill

We have seen thus far that Congress did not speak to the precise issue that the court decides today; that the MMPA’s text, structure, and legislative history support the agency’s interpretation; and that NOAA’s administration of the statute represents a reasonable resolution of conflicting policies embodied in the statute. It is evident, then, under Chevron’s two-step analysis that judicial deference to the agency’s reasonable interpretation is required. But in the present setting, several additional considerations point powerfully in favor of deferring to the agency’s interpretation.

First, NOAA is charged with administering a statute which sets forth a variety of objectives (including a workable permit system, as described above). Under the MMPA, NOAA is obliged to take into account the following factors in administering the permit system:

(1) existing and future levels of marine mammal species and population stocks;

(2) existing international treaty and agreement obligations of the United States;

(3) the marine ecosystem and related environmental considerations;

(4) the conservation, development, and utilization of fishery resources; and

(5) the economic and technological feasibility of implementation.

§ 1373(b). Today, the court features only the first factor in its analysis. The agency, in contrast, is not at leisure to stop at factor number one, for it has a statutory duty to consider all five. The agency, in short, cannot call it a day upon completing only one-fifth of the Congressionally ordained exercise.

Second, the agency is undeniably maximizing the overall goal of the Act to reduce or eliminate marine mammal takings by the reasonable exercise of its regulatory power. In contrast, the result of today’s decision raises the danger that the Japanese will terminate their treaty obligations under the INPFC. The overall result may very well be, ironically, reduced protection for marine mammals, if the Japanese fleet withdraws from fishing activity subject to NOAA regulation. That unhappy state of affairs would be but another testament to the recurring reality of unintended consequences. But there is another, closely related element as well. Because the statute specifically directs the agency to take cognizance of U.S. treaty obligations, it is particularly appropriate that the Executive be afforded reasonable latitude in administering a statute that touches on the arena of foreign policy.

Third, the issue before us is not a question of the agency’s power (in the sense of its jurisdictional reach) in which deference to the agency might be less justified. See ACLU v. FCC, 823 F.2d 1554, 1567 n. 32 (D.C.Cir.1987); American Mining Congress v. EPA, 824 F.2d 1177, 1186-87 (D.C.Cir.1987). There is thus no reason to assume that NOAA is being less than dispas*808sionate in trying to balance the competing considerations before it. Cf. Schwabacher v. United States, 334 U.S. 182, 204, 68 S.Ct. 958, 970, 92 L.Ed. 1305 (1948) (Frankfurter, J., dissenting) (“Since the [ICC] disclaims rather than asserts a power, there is all the more reason to feel assured of its disinterestedness and to resolve ambiguity in favor of its choice of construction.”) Rather, the statute requires the agency to apply the law to the facts at hand and to make judgments based upon a number of statutory criteria. What is more, the statutory scheme relies heavily upon the agency’s technical expertise.

Finally, Congress has created an additional loop in the decisionmaking process in order better to assure the wisdom of NOAA’s permit decisions. The MMPA requires NOAA to consult with the Marine Mammal Commission (“MMC”) before prescribing regulations governing takings. § 1373(a). The MMC is a separate advisory body whose members are appointed by the President (with the advice and consent of the Senate) from a list of qualified individuals who must be unanimously agreed upon by heads of other specified Executive Branch agencies. § 1401. The statute thus provides a mechanism to ensure that individuals will provide their independent judgment and give environmental concerns their priority. The MMC has concurred fully with NOAA’s interpretation of the Act. Reply Brief of the Marine Mammal Commission Before the United States Department of Commerce, National Oceanic and Atmospheric Administration, and National Marine Fisheries Service 30-31, Appellant App. at 311-12 (recommending that NOAA issue a permit for the taking of Dali’s porpoise but deny permits for the fur seals and sea lions that would inevitably be taken). Moreover, in this particular case, NOAA consulted fully with the MMC and accepted the MMC’s recommendation not to issue a permit for the taking of fur seals over the contrary recommendation of the AU. Decision of the Under Secretary 10, 14, Appellant App. at 136, 140. The advisory body’s ratification of the agency’s approach is thus but another factor suggesting the wisdom — quite apart from the legal requirement — of Chevron deference.

IV

The court discerns support for its holding in two subsequent amendments to the MMPA. With all respect, the court misses the mark in assuming that Congress’ action in these areas has a significant bearing on its intentions in the very different context of salmon gillnet fishing operations.

A

The court reasons that the Federation’s problems would be solved if the de minim-is exception embodied in section 1371(a)(4)(A) had been enacted as originally proposed — that is, without the limitation to “citizens of the United States.” Maj. op. at 802. The court infers from Congressional silence that Congress’ intent as to this very different issue is so clear as to foreclose the agency’s interpretation. In so reasoning, the court misapprehends, I believe, the purposes animating Congress in enacting the amendment.

Congress enacted this section because the procedures leading to an incidental take permit under section 1374 were so burdensome that many fishing operators would not apply for a permit authorizing their few incidental takes. H.R.Rep. 97-228, 97th Cong., 1st Sess. 14 (1981), U.S.Code Cong. & Admin. News 1981, pp. 1458,1464. The exemption is thus activity-based. “Unless a particular activity takes only small numbers of marine mammals, and that taking has a negligible impact on the species, the new provisions of sections 101(a)(4) and (5) [16 U.S.C. § 1371(a)(4) and (5)] are not applicable to that activity.” Id. at 19, U.S. Code Cong. & Admin. News 1981, p. 1469. This section was not intended to apply to the situation faced by groups such as the Federation, which seek general permits to take thousands of marine mammals yearly. See, e.g., 49 Fed.Reg. 1925 (1984) (General Permits issued to the North Pacific Fishing Vessel Owners’ Association (3,605 mammals), Pacific Coast Federation of Fishermen’s Association (2,790 mammals), and Japan (6,189 mammals)). As to the issue *809before us, the de minimis exception is, with all respect, a fish out of water.

B

The court reasons that Congress made special provision for purse-seine tuna fishing, loosening MMPA requirements by amending § 1371(a)(2) in 1981. Maj. op. at 802-03. The court, I believe, misapprehends the import of the 1981 amendment.

The language cited by the court does nothing to take purse-seine tuna fishing out of the rigorous permit requirements of the MMPA. Rather, the statute commands that fishing operators must make “best efforts” to reduce killing or injuring marine mammals, even if a permit for their taking has issued. Far from representing a “statutory relaxation,” id., the amendment mandates an additional goal to which the MMPA — heretofore concerned with regulating only “takings” — had not concerned itself. The change made eminent sense in the purse-seine fishing industry because the techniques used there meant that marine mammals, even though “taken” within the statutory meaning of the term, might easily be set free by use of appropriate techniques. The amendment, in effect, mandates that those techniques be used.6

V

As I have attempted to demonstrate, powerful indications abound pointing in favor of the agency’s interpretation in this case. Above all, had Congress wanted to stop all fishing operations in the Bering Sea in order to protect marine mammals from incidental takings, it could readily have done so. Instead, Congress enacted a statute creating a species-based permit system as an integral part of its provisions. Because today’s decision robs those provisions of meaningful content and substitutes for a reasonable agency interpretation a rigid judicial construction of the statute, I am constrained respectfully to dissent.

. The Federation of Japan Salmon Fisheries Cooperative Association (“Federation”) estimates that its fishing operations involve employment of approximately 51,861 people, including those engaged in distribution and processing associated with the industry. Statement of Shintaro Enomoto, Appendix of Appellant ("Appellant App.'') at 349. The Federation calculated that it would have incurred losses in preparatory expenditures amounting to over $40 million had the District Court not stayed its temporary injunction for 20 days, thereby allowing fishing operations in the 1987 season. Affidavit of Shintaro Enomoto, Appellant App. at 59.

. These provisions impose upon NOAA an obligation to make specific, affirmative findings with respect to each species for which a permit is issued before NOAA can issue a permit for the taking of that species. NOAA must ascertain the "existing levels of the species and population stocks" of the mammals to be taken, the optimum sustainable population ("OSP”) of those mammals, and the impact of the takings of the OSP on the species. § 1373(d); see also Committee for Humane Legislation v. Richardson, 540 F.2d 1141, 1149-50 (D.C.Cir.1976). In making these assessments, NOAA must conduct hearings on the record, § 1373(d), and report to Congress annually on "the current status of all marine mammal species and population stocks" covered by the MMPA. § 1373(f). And, as an overriding concern in the permit structure, NOAA must assure that any permitted takings “not be to the disadvantage of those species.” § 1373(a). Only if NOAA has jumped through each of these statutory hoops, among others, can it issue a permit for the taking of a particular species.

. To borrow the language of the court, the agency knew this to he "not merely a remote possibility hut a certainty.” Maj. op. at 801; see also Maj. op. at 801 n. 13.

. Appellees place particular emphasis on the nonpermitted takings of fur seals. There is some controversy among the parties about the number of fur seals likely to he taken in the Japanese salmon fishery. Despite some hints in the court's opinion to the contrary, Maj. op. at 798, the issue was fully joined in administrative proceedings below. Two different population stocks are at issue, namely, fur seals from the Pribilof Islands in the eastern Bering Sea off Alaska and fur seals from the Commander Islands in the Soviet Union.

Appellants do not appear to contest NOAA’s determination that the Pribilof fur seals are legally depleted. See Reply Brief of Appellant Federation of Japan Salmon Fisheries Cooperative Association at 19 n. 24; Reply Brief of Federal Appellants at 4-5. The ALJ found that the Pribilof population had declined "from 1.8 million or thereabouts to something less than half of that over a period of ten or fifteen years.” Recommended Decision of Hugh J. Do-lan, Administrative Law Judge ("ALJ Decision") at 33, Appellant App. at 285. According to the ALJ, the population continues to decline at a rate of roughly 6.5% per year. Id. NOAA’s proposed rule designating Pribilof fur seals as depleted estimated that their population had declined from 1.3 million in the late 1970’s to 871,000 in 1983, a decline of one-third in less than a decade. 51 Fed.Reg. 47158 (1986), Appellant App. at 315. NOAA also estimated current [1986] population at 800,000. Id. An important cause of the decline in Pribilof fur seal population was found , to be entanglement in discarded nets and debris, rather than set nets used in actual operations. Id. at 47159, Appellant App. at 316.

In contrast to the stock of Pribilof fur seals, the ALJ found the stock of Commander fur seals to be stable, if not increasing, and estimated the current population at 210,000. AU Decision at 33, Appellant App. at 285. The AU also noted that the stock sustains a harvest by the Soviet Union of about 4,000 to 5,500 fur seals annually. Id. at 34, Appellant App. at 286.

The court implies that as many as 450 fur seals might be taken in the Federation’s fishing operations. See Maj. Op. at 801 n. 12. The agency’s determination, however, was squarely to the contrary. The Federation estimated that the take of all fur seals would amount to an average of 45 per year. The AU accepted this figure and found it de minimis. Id. The Environmental Impact Statement (“EIS”) also adopted this 45/year figure. EIS at 66, Appellant App. at 217.

Of these 45 fur seals likely to be taken annually, the AU calculated, as a matter of mathematical probability, that 10 would be taken from the Pribilof Island stock and that one Out of those 10 would die. AU Decision at 35, Appellant App. at 287. There was, however, no direct evidence of even a single fur seal from the Pribilof stock ever having been taken. The AU’s estimates were based on mathematical probabilities only.

. Although the MMPA provides for a full panoply of remedies, including vessel seizure and criminal sanctions, §§ 1374-1375, the statute does not provide for the remarkable remedy that the District Court has chosen to craft here and that the court today affirms — that is, an injunction against issuing a permit for the taking of one species when another, for which no permit may lawfully issue, will inevitably be taken.

. In purse-seine fishing, two boats set a net around a school of fish. After the net encircles the school, the bottom of the net is tied together, entrapping the fish within. At that point, marine mammals caught within the net are "taken" within the meaning of the MMPA, but in many cases can still be let free without injury.