Earth Island Institute v. Daley

Slip Op. 99 - 32

UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - - - -x
EARTH ISLAND INSTITUTE, A CALIFORNIA :
NONPROFIT CORPORATION; TODD STEINER;
THE AMERICAN SOCIETY FOR THE PREVENTION :
OF CRUELTY TO ANIMALS, A NEW YORK NON-
PROFIT CORPORATION; THE HUMANE SOCIETY :
OF THE UNITED STATES, A DELAWARE NON-
PROFIT CORPORATION; and THE SIERRA CLUB, :
A CALIFORNIA NONPROFIT CORPORATION,
:
Plaintiffs,
:
v. Court No. 98-09-02818
:
WILLIAM M. DALEY, SECRETARY OF COMMERCE;
MADELEINE ALBRIGHT, SECRETARY OF STATE; :
ROBERT E. RUBIN, SECRETARY OF TREASURY;
MELINDA KIMBLE, ACTING ASSISTANT SECRE- :
TARY OF STATE FOR THE BUREAU OF OCEANS
AND INTERNATIONAL ENVIRONMENTAL AND SCI- :
ENTIFIC AFFAIRS; ROLLAND A. SCHMITTEN,
ASSISTANT ADMINISTRATOR FOR FISHERIES, :
NATIONAL MARINE FISHERIES SERVICE; and
STUART E. EIZENSTAT, UNDER SECRETARY OF :
STATE FOR ECONOMIC, BUSINESS AND AGRI-
CULTURAL AFFAIRS, :

Defendants, :

-and- :

NATIONAL FISHERIES INSTITUTE, INC., :

Intervenor-Defendant. :
- - - - - - - - - - - - - - - - - - - - -x

Memorandum & Order

[Plaintiffs' motion to declare defendants in
violation of embargo enacted by Congress
granted, in part.]

Dated: April 2, 1999

Legal Strategies Group (Joshua R. Floum and Louisa M. Dani-
els) for the plaintiffs.

David W. Ogden, Acting Assistant Attorney General, and Lois
J. Schiffer, Assistant Attorney General; David M. Cohen, Direc-
tor, Commercial Litigation Branch, Civil Division (Lucius B. Lau)
Court No. 98-09-02818 Page 2

and Environment and Natural Resources Division, Wildlife and
Marine Resources Section (Eileen Sobeck and Jane P. Davenport),
U.S. Department of Justice; and Jay S. Johnson, Deputy General
Counsel, National Oceanic and Atmospheric Administration, U.S.
Department of Commerce; and Office of the Legal Advisor, U.S.
Department of State (Violanda Botet), of counsel, for the de-
fendants.1

Garvey, Schubert & Barer (Eldon V.C. Greenberg) for the
intervenor-defendant.

AQUILINO, Judge: This case follows in the wake of

legislation begun more than ten years ago in the Congress of the

United States, followed by litigation in the U.S. District Court

for the Northern District of California, continued in its Court

of Appeals for the Ninth Circuit and then this Court of Interna-

tional Trade, followed by an appeal to the U.S. Court of Appeals

for the Federal Circuit by the government and also by other

nations’ appeals to the World Trade Organization against the

government. The complaint raises an issue first raised by the

plaintiffs in case no. 94-06-00321 and resolved by this court

sub nom. Earth Island Institute v. Christopher, 20 CIT , 942

F.Supp. 597 (1996), which decision2 was vacated by the Federal

Circuit some two years later on procedural grounds viz. Earth

Island Institute v. Albright3.

1
The official caption above reflects modification of names
and offices pursuant to formal motion by these counsel and also
by the court to conform to the administrative record ("AR") filed
by them herein.
2
That opinion and order will be referred to hereinafter as
slip op. 96-165.
3
147 F.3d 1352 (Fed.Cir. 1998). The court of appeals also
remanded to this court the issue of whether an award of attor-

(footnote continued)
Court No. 98-09-02818 Page 3

I

The enactment of Congress which is at the core of this

case and continuing controversy is found within the 1989 appro-

priations act for the Departments of Commerce and State, among

others, Pub. L. No. 101-162, 103 Stat. 988, to wit:

Sec. 609. (a) The Secretary of State, in consul-
tation with the Secretary of Commerce, shall, with
respect to those species of sea turtles the conserva-
tion of which is the subject of regulations promul-
gated by the Secretary of Commerce on June 29, 1987--

(1) initiate negotiations as soon as
possible for the development of bilateral or
multilateral agreements with other nations
for the protection and conservation of such
species of sea turtles;

(2) initiate negotiations as soon as
possible with all foreign governments which
are engaged in, or which have persons or
companies engaged in, commercial fishing
operations which, as determined by the
Secretary of Commerce, may affect adversely
such species of sea turtles, for the purpose
of entering into bilateral and multilateral
treaties with such countries to protect such
species of sea turtles;

(3) encourage such other agreements to
promote the purposes of this section with
other nations for the protection of specific
ocean and land regions which are of special
significance to the health and stability of
such species of sea turtles;

(4) initiate the amendment of any exist-
ing international treaty for the protection
and conservation of such species of sea
turtles to which the United States is a party
in order to make such treaty consistent with
the purposes and policies of this section; and

neys’ fees and expenses to the plaintiffs pursuant to the Equal
Access to Justice Act, 28 U.S.C. §2412, would be appropriate.
That issue has been resolved per Earth Island Institute v. Al-
bright, 22 CIT , Slip Op. 98-151 (Nov. 4, 1998).
Court No. 98-09-02818 Page 4

(5) provide to the Congress by not later
than one year after the date of enactment of
this section--

(A) a list of each nation which
conducts commercial shrimp fishing
operations within the geographic range
of distribution of such sea turtles;

(B) a list of each nation which
conducts commercial shrimp fishing
operations which may affect adversely
such species of sea turtles; and

(C) a full report on--

(i) the results of his efforts under
this section; and

(ii) the status of measures taken by
each nation listed pursuant to paragraph
(A) or (B) to protect and conserve such
sea turtles.

(b)(1) IN GENERAL.-- The importation of shrimp or
products from shrimp which have been harvested with com-
mercial 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 impor-
tation 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
Court No. 98-09-02818 Page 5

(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.4

When the government decided to enforce this statute

only within the "Wider Caribbean/Western Atlantic region", Earth

Island Institute et al. brought their original action, complain-

ing, among other things, that, on its face, the statute required

worldwide application. This court ultimately concurred, Earth

Island Institute v. Christopher, 19 CIT 1461, 913 F.Supp. 559

(1995). The government was afforded a period of five months to

begin to prohibit

the importation of shrimp or products of shrimp wher-
ever harvested in the wild with commercial fishing
technology which may affect adversely those species
of sea turtles the conservation of which is the sub-
ject of regulations promulgated by the Secretary of
Commerce on June 29, 1987, 52 Fed.Reg. 24,244, except
as provided in Pub. L. No. 101-162 §609(b)(2), 16
U.S.C. §1537 note, and to report the results thereof
to the court.

19 CIT at 1485-86, 913 F.Supp. at 580. The government respond-

ed with a motion for an additional one-year extension of time

to comply. The motion was denied, and a final judgment to the

foregoing effect was entered. See Earth Island Institute v.

Christopher, 20 CIT , 922 F.Supp. 616, appeals dismissed,

86 F.3d 1178 (Fed.Cir. 1996).

4
103 Stat. at 1037-38, 16 U.S.C. §1537 note. This statute
will be referred to hereinafter as section 609.
Court No. 98-09-02818 Page 6

A

Soon thereafter, the State Department published Revis-
ed Notice of Guidelines for Determining Comparability of Foreign

Programs for the Protection of Turtles in Shrimp Trawl Fishing

Operations5 and Bureau of Oceans and International Environmental

and Scientific Affairs; Certifications Pursuant to Section 609 of

Public Law 101-162, 61 Fed.Reg. 24,998 (May 17, 1996). The April

19 notice announced that the

Department of State has determined that import prohibi-
tions imposed pursuant to Section 609 do not apply to
shrimp or products of shrimp harvested . . . by com-
mercial shrimp trawl vessels using TEDs comparable in
effectiveness to those required in the United States.

* * *

Shrimp Exporter's Declaration. The Department of
State has determined that, in order to achieve effect-
ive implementation of Section 609 on a world-wide basis,
beginning May 1, 1996, all shipments of shrimp and pro-
ducts of shrimp into the United States must be accompan-
ied by a declaration (DSP-121, revised) attesting that
the shrimp accompanying the declaration was harvested
either under conditions that do not adversely affect sea
turtles . . . or in waters subject to the jurisdiction
of a nation currently certified pursuant to Section 609.
All declaration[s] must be signed by the exporter of the
shrimp. A government official of the harvesting nation
must also sign those declarations asserting that the ac-
companying shrimp was harvested under conditions that do
not adversely affect sea turtles. The declaration must
accompany the shipment through all states of the export
process, including in the course of any transshipments
and of any transformation of the original product.6

5
61 Fed.Reg. 17,342 (April 19, 1996) [hereinafter referred
to as "1996 Revised Guidelines"].
6
61 Fed.Reg. at 17,343. The acronym "TEDs" refers to var-
ious turtle excluder devices. See generally Earth Island Insti-

(footnote continued)
Court No. 98-09-02818 Page 7

Earth Island Institute et al. challenged this approach
as "dangerous" and "disingenuous" because it

eliminates any incentive for countries to put TEDs on
more than a handful of nets. Countries can evade the
Law's embargo by exporting to the United States those
shrimp caught by a few designated vessels which are
equipped with TEDs, while exporting elsewhere shrimp
caught by those which are not. This eviscerates both
of Congress' purposes in enacting the Turtle Law. It
fails to create the level playing field which Congress
undeniably sought for the U.S. fleet, which is required
to put TEDs on each and every vessel. It also guts the
Law's objective of protecting these endangered species
-- for substantial portions of the shrimping fleets of
exporting nations may now eschew TEDs with impunity.

20 CIT at , 942 F.Supp. at 600-01. In other words, the plain-

tiffs contended that the State Department's regulations were not

in conformity with the court's judgment, whereupon they moved the

court to compel the government to "embargo all wild-caught shrimp

exports from countries which do not adopt a regulatory scheme

requiring TEDs that is comparable to that of the United States."

20 CIT at ___, 942 F.Supp. at 601.

The court concurred -- in slip op. 96-165, familiarity

with which is presumed. Noting that the "constitutional, leg-

islated will of Congress remains unambiguous upon reading and

rereading its manifestation in section 609"7, that the statute

is "succinct and should be read in toto"8, and that the domestic,

U.S. comparator was an underpinning of the judgment which had not

tute v. Christopher, 19 CIT 1461, 1463 n. 1, 913 F.Supp. 559, 563
n. 1 (1995), and references cited therein.
7
20 CIT at ___, 942 F.Supp. at 603.
8
Id.
Court No. 98-09-02818 Page 8

been modified by the government9, the court reiterated that the
record still

supports a finding that the requirement of TEDs on all
vessels of a harvesting nation at all times results in
a satisfactory rate of incidental taking of endangered
species of sea turtles. In the absence of intelligence
to the contrary, it remains a fortiori that requiring
anything less than is comparable to the U.S. program
violates section 609 and the court's judgment.

20 CIT at ___, 942 F.Supp. at 605.

The government and the intervenor-defendant National

Fisheries Institute, Inc. ("NFI") appealed the court's resultant

order of enforcement to the Federal Circuit, which, as indicated

above, ultimately vacated it on the ground that Earth Island

Institute et al. withdrew beforehand the motion which had caused

consideration of entry of such necessary, additional, equitable

relief and thereby deprived this court of any jurisdiction.10

But see 28 U.S.C. §1585 ("The Court of International Trade shall

possess all the powers in law and equity of, or as conferred by

statute upon, a district court of the United States"); United

States v. Hanover Insurance Co., 82 F.3d 1052, 1054 (Fed.Cir.

9
20 CIT at ___, 942 F.Supp. at 605.
10
Earth Island Institute v. Albright, 147 F.3d 1352, 1356
(Fed.Cir. 1998). That court's vacatur for lack of jurisdiction
also was held to apply to Earth Island Institute v. Christopher,
20 CIT ___, 948 F.Supp. 1062 (1996), which decision had been
engendered by the appellants' motions for stays of the order of
enforcement, pending their appeals therefrom, and which had been
granted in part by this court. But see CIT Rule and Federal Rule
of Civil Procedure 62 (Stay of Proceedings to Enforce a Judgment)
and Federal Circuit Rule of Practice and Federal Rule of Appel-
late Procedure 8 (Stay of Injunction Pending Appeal) and cases
decided thereunder.
Court No. 98-09-02818 Page 9

1996) ("the Court of International Trade has the inherent power

to determine the effect of its judgments and issue injunctions

to protect against attempts to attack or evade those judgments").

See also Bronson v. Shulten, 104 U.S. (14 Otto) 410, 415 (1881)

("It is a general rule of the law, that all the judgments, de-

crees, or other orders of the courts, however conclusive in their

character, are under the control of the court which pronounces

them during the term at which they are rendered or entered of

record, and they may then be set aside, vacated, modified, or

annulled by that court"); Wyler v. Union Pacific Ry. Co., 89 F.

41, 42 (C.C. W.D.Mo. 1898) ("during the term all the proceedings

are in the breast of the judge, and they may be altered or va-

cated as justice requires"); Union Trust Co. v. Rockford, R.I. &

St.L. R. Co., 24 F.Cas. 704, 705 (C.C. N.D.Ill. 1874)(No. 14,401)

("the power of a court over its judgments, to set aside, modify

or annul, is unlimited during the entire term at which such judg-

ments are rendered"); Sam v. State, 265 P. 622, 623 (Ariz. 1928);

Banegas v. Brackett, 34 P. 344, 344-45 (Cal. 1893); Bradford v.

People, 43 P. 1013, 1015 (Colo. 1896); Whitaker v. Wright, 129

So. 889, 891-92 (Fla. 1930); Tyler v. Eubanks, 60 S.E.2d 130,

133 (Ga. 1950); Durre v. Brown, 34 N.E. 577, 578 (Ind.App. 1893);

Hallam v. Finch, 195 N.W. 352, 353 (Iowa 1923); Sylvester v.

Riebolt, 164 P. 176, 177 (Kan. 1917); Fields v. Combs, 18 S.W.2d

965, 966 (Ky. 1929); Barber v. Barber 98 A. 822, 823 (Me. 1916);

Harvey v. Slacum, 29 A.2d 276, 277 (Md. 1942); Morse v. Morse,
Court No. 98-09-02818 Page 10

154 P.2d 982, 984 (Mont. 1945); Bradley v. Slater, 75 N.W. 826,
826 (Neb. 1898); Henderson v. Dreyfus, 191 P. 455, 457 (N.M.

1920); Cook v. Western Union Tel. Co., 64 S.E. 204, 205 (N.C.

1909); Maryland Cas. Co. v. John F. Rees Co., 40 N.E.2d 200, 202

(Ohio 1941); Tillman v. Tillman, 184 P.2d 784, 785 (Okla. 1947);

Bergman v. West, 262 S.W.2d 435, 436 (Tex.Civ.App. 1953).

B

Notwithstanding such well-established precedent, the

government appellants argued to the Federal Circuit that this

court "lacked any jurisdiction to rule"11 and "exceeded any au-

thority it might have had to enforce its own order". Brief for

Madeleine K. Albright et al., p. 20 (Fed.Cir. Nos. 97-1085,-1086

Feb. 11, 1997). At the same time as those appellants were also

arguing in Washington that this court "erred in its interpreta-

tion of the scope of section 609"12, the government was on an-

other tack before the consolidated panel established in Geneva

by the Dispute Resolution Body of the World Trade Organization

("WTO") at the instance of Malaysia and Thailand, and Pakistan,

and finally India, sub nom. United States -- Import Prohibition

of Certain Shrimp and Shrimp Products, WT/DSB/M/31 (12 May 1997).

11
Brief for Madeleine K. Albright et al., p. 17 (Fed.Cir.
Nos. 97-1085,-1086 Feb. 11, 1997). See also Corrected Reply
Brief for Madeleine K. Albright et al., pp. 12-19 (Fed.Cir. Nos.
97-1085,-1086 June 1997).
12
Brief for Madeleine K. Albright et al., p. 25 et seq.
(Fed.Cir. Nos. 97-1085,-1086 Feb. 11, 1997).
Court No. 98-09-02818 Page 11

For example, the First Submission of The United States repre-

sented:
"A. Sea Turtles are a shared global resource

. . . 4. There has never been a clearer or more compelling case

presented to the WTO for the conservation of an exhaustible nat-

ural resource or the protection of animal life or health than

this dispute. For more than 20 years, there has been an inter-

national consensus . . . that sea turtles are endangered. The

international community . . . has agreed that sea turtles need

to be protected and conserved. Scientific research demonstrates

that the accidental capture and drowning of sea turtles in shrimp

trawl nets represents the single largest human-related cause of

sea turtle deaths and has contributed greatly to the drastic de-

mise of these species. Finally, the international community has

recognized that the drowning of sea turtles in shrimp trawl nets

can be virtually eliminated through the use of a simple, inex-

pensive device -- the . . . 'TED'. The required use of TEDs has

become a multilateral environmental standard.

5. The United States requires its shrimp fishermen to harvest

shrimp in a manner that is safe for sea turtles. In this case,

the United States only asks that shrimp imported into the United

States should be harvested in a comparable manner. In this way,

the U.S. market will not cause a further depletion of endangered

sea turtle species. In this way, the United States is not forced

to be an unwilling partner in the extinction of sea turtles.
Court No. 98-09-02818 Page 12

6. Moreover, the U.S. measures at issue in this case appear to

be effective in protecting and conserving sea turtles while not

disrupting trade. U.S. imports of shrimp have remained steady,

and suppliers have had little difficulty adjusting their prac-

tices so as to ensure that exports of shrimp to the United States

have been harvested in a manner that does not harm sea turtles.

* * *
B. Sea turtles are endangered

16. . . . Today, all species of sea turtles face the danger of

extinction, primarily because of human activities. . . .

17. The international community has responded to the imperiled

global status of sea turtles. Since 1975, all species of sea

turtles have appeared on Appendix I to the Convention on Inter-

national Trade in Endangered Species of Wild Flora and Fauna

("CITES"), which includes 'all species threatened with extinction

which are or may be affected by trade.' Similarly, all species

except the flatback are listed in Appendices I and II to the

Convention on the Conservation of Migratory Species of Wild

Animals and in Appendix II of the Protocol Concerning Specially

Protected Areas and Wildlife to the Convention for the Protection

and Development of the Marine Environment of the Wider Carribean

Region.

18. Since the 1970s, all species of sea turtles that occur in

waters subject to U.S. jurisdiction have been listed as either
Court No. 98-09-02818 Page 13

endangered or threatened under the U.S. Endangered Species Act

of 1973 ("ESA").
C. Shrimp trawl nets are the largest human-induced
cause of sea turtle mortality

19. Sea turtles face a variety of threats in both the marine and

nesting environments. However, the incidental capture and
drowning of sea turtles in shrimp trawl nets has caused the
greatest number of human-induced sea turtle deaths, accounting
for more deaths than all other human activities combined. For

this reason, the Marine Turtle Specialist Group of the IUCN

(World Conservation Union) identified reduction of sea turtle

mortality in such trawling operations as a priority action item.

20. As early as 1982, it was recognized that 'shrimp trawlers

are considered to capture and drown more sea turtles worldwide

than any other form of incidental capture.' . . .

* * *

D. Turtle excluder devices (TEDs) effectively prevent
the drowning of sea turtles in shrimp trawl nets

22. The turtle excluder device . . . is a simple, cheap and

highly effective solution to the problem of sea turtle mortality

in shrimp trawl nets. . . . TEDs . . . have been developed and

manufactured on a commercial basis in a wide variety of nations.

23. The United States Government conducted a detailed, compre-

hensive study, involving thousands of hours spent by neutral
Court No. 98-09-02818 Page 14

observers aboard shrimp trawl vessels. Based on this study and

its own exhaustive analysis, the U.S. National Academy of Sci-

ences concluded in 1990 that properly installed TEDs -- of the

sort required for use in the United States for more than seven

years -- are a practical and cost-effective way to minimize the

unintentional drowning of sea turtles in shrimp trawl nets.

Properly installed TEDs approach 97 percent efficiency in allow-
ing sea turtles to escape from shrimp trawl nets, while limiting
shrimp loss rates to 1-3 percent. . . .

24. TEDs are now widely used in shrimp trawl fisheries though-

out the Western Hemisphere. More recently, African and Asian

countries have begun requiring their use as well. . . .

E. The use of TEDs has become a multilateral
environmental standard

25. The use of TEDs has become a recognized multilateral envi-

ronmental standard, fulfilling twin commitments on the part of

the international community to conserve endangered species such

as sea turtles and to minimize their unintentional mortality in

fishing operations.

26. The international community has long recognized the need to

protect endangered species such as sea turtles. There are now

134 nations that are parties to CITES. . . .

27. The international community has also long been aware of the

threat to sea turtles and to other living resources as a result
Court No. 98-09-02818 Page 15

of their incidental mortality in marine fishing operations. The

1982 United Nations Convention on the Law of the Sea . . . gen-

erally requires States, both within areas under their national

jurisdiction and on the high seas, to ensure through proper

conservation and management measures that the maintenance of

living resources is not endangered by over-exploitation. . . .

* * *

31. The countries in the Western Hemisphere understood that,

because of the highly migratory nature of sea turtles, a treaty

that afforded protection to sea turtles in only one region of the

world would not succeed unless countries in other regions adopted

comparable measures. For this reason, Article XX of the Inter-

American Convention [for the Protection and Conservation of Sea

Turtles13] encourages its parties to negotiate complementary pro-

tocols to that treaty with States in other regions in order to

promote the protection and conservation of sea turtles outside

the Western Hemisphere.

* * *

33. . . .[T]he required use of TEDs, both in Asia and through-

out the Western Hemisphere, has become a multilateral environ-

mental standard. Today, at least the following nations require

TEDs on shrimp trawl vessels subject to their jurisdiction: Be-

lize, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Guate-

mala, Guyana, Honduras, Indonesia, Mexico, Nicaragua, Nigeria,

13
37 I.L.M. 1246.
Court No. 98-09-02818 Page 16

Panama, the People's Republic of China, Thailand, Trinidad and

Tobago, the United States and Venezuela. Other nations in Asia

and Africa have informed the United States of their intention or

desire to establish TEDs programs.

34. One reason why TEDs use has become so widespread is that the

United States Government has undertaken extraordinary efforts to

transfer TEDs technology to governments and industries in other

countries, particularly in developing countries. . . .

35. Through . . . workshops and related efforts, the United

States has transferred TEDs technology to at least the following

countries: Australia, Belize, Brazil, Brunei, Colombia, Costa

Rica, Ecuador, El Salvador, Eritrea, Guatemala, Guyana, Honduras,

India, Indonesia, Japan, Kenya, Mexico, Madagascar, Malaysia,

Mozambique, Nicaragua, Panama, the People's Republic of China,

the Philippines, Singapore, Suriname, Tanzania, Thailand, Trini-

dad and Tobago, and Venezuela. . . .

36. Recently, the United States intensified its TEDs technology

transfer efforts. In 1996 alone, the United States conducted

TEDs training workshops in Mombasa, Kenya; in Songkla, Thailand;

in Tegal, Indonesia; in Guayaquil, Ecuador; and in Orissa, India.

The workshop in Thailand . . . includ[ed] . . . fisheries mana-

gers and shrimp fishermen from Australia, Brunei, Japan, Malay-

sia, the Philippines, Singapore and Thailand. In 1997, . . .

the United States . . . held TEDs workshops in Mombasa, Kenya
Court No. 98-09-02818 Page 17

. . .; in several locations in Australia; in Cochin, India; and

in Chittagong, Bangladesh.

37. . . . TEDs have become a true environmental success story.

. . . Their use is now a multilateral environmental standard.

F. TEDs are required in the United States to minimize
sea turtle mortalities caused by shrimp trawling

38. The United States Government requires shrimp trawl vessels

that operate in waters subject to U.S. jurisdiction in which

there is a likelihood of intercepting sea turtles to use TEDs

at all times.

39. . . . [A]ll species of sea turtles occurring in waters sub-

ject to U.S. jurisdiction are listed as endangered or threatened

under the ESA. Under the authority of the ESA, NMFS[14] first

required the use of TEDs by shrimp trawl vessels operating in

U.S. waters on the basis of regulations promulgated in 1987,

which went into full effect in 1990. The 1987 regulations re-

quired that all vessels 25 feet or longer must use TEDs when

trawling for shrimp in offshore waters where there is a likeli-

hood of intercepting sea turtles and that shrimp vessels less

than 25 feet trawling in such offshore waters must use TEDs or

restrict their tow time to 90 minutes or less. Tow times that

short in duration are not likely to result in the drowning of

captured sea turtles. Similarly, all vessels trawling for shrimp

14
National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce.
Court No. 98-09-02818 Page 18

in such inshore waters were required to use TEDs or to limit tow

times to 90 minutes or less. The regulations also set forth re-

quired specifications for TEDs, a primary requirement being a 97

percent exclusion rate of captured sea turtles.

40. A 1990 U.S. National Academy of Sciences report on sea

turtles . . . recommended tightening and extending the require-

ments for TEDs. NMFS accordingly promulgated even stricter TEDs

requirements in 1992, which were implemented in three phases

(late 1992, January 1993 and December 1994). Since December 1,

1994, these regulations have required the use of TEDs in all

shrimp trawl nets, with very limited exceptions, and have elimi-

nated the option for some small shrimp trawl vessels to restrict

tow times in lieu of using TEDs. . . .

G. Without the use of TEDs, other measures to protect
sea turtles are insufficient

41. . . . Any effective program to allow the recovery of these

endangered species must include the required use of TEDs by

shrimp trawl vessels that operate in areas and at times where

there is a likelihood of intercepting sea turtles.

* * *

47. . . . [E]ven if . . . other measures taken . . . to protect

sea turtles were effectively enforced, without the required use

of TEDs, they would be insufficient to allow sea turtle popula-

tions in that region of the world to recover. These other con-
Court No. 98-09-02818 Page 19

servation measures have not been shown to have any significant

effect on the number of sea turtles that survive to adulthood

and reproduce.

H. Section 609 promotes the protection and conservation
of sea turtles

48. Because sea turtles migrate widely and are a shared global

resource, U.S. domestic measures to protect sea turtles would not

be effective unless shrimp exported to the United States by other

nations is harvested in a manner that does not harm sea turtles.

* * *

50. Section 609 . . . ensures shrimp exported to the U.S. market

is harvested in a manner that does not harm sea turtles. Section

609(b) prohibits the importation of shrimp or products from

shrimp harvested with commercial fishing technology that may ad-

versely affect species of sea turtles protected under U.S. laws

and regulations . . ..

51. Following the enactment of Section 609 in 1989, the U.S.

Government stepped up its campaign . . . to transfer TEDs tech-

nology to other countries. In addition, the U.S. Department of

State developed a set of guidelines for determining the compar-

ability of foreign programs for the protection of sea turtles in

shrimp trawl fishing operations. The Department . . . provided

copies of them to all affected governments. . . .
Court No. 98-09-02818 Page 20

52. Until recently, the U.S. Administration implemented Section

609 based on the interpretation that it applied only to nations

in the Wider Caribbean/Western Atlantic region. . . . The in-

itial Department of State Guidelines, published in 1991 and

revised in 1993, set forth the criteria for certification of

these countries. The Department . . . established interim

requirements for certification in the first years, designed to

encourage the development of comprehensive TEDs programs in these

countries. As of May 1, 1994, certification depended on the im-

plementation of such a comprehensive TEDs program.

53. On December 29, 1995, the U.S. Court of International Trade

issued an order . . . requiring that Section 609 be applied on a

global basis as of May 1, 1996. . . .

54. Following the . . . order . . . , the Department of State

issued the current Guidelines to reflect the requirement to ap-

ply Section 609 on a global basis. . . . They make clear that

the United States Government requires commercial shrimp trawl

vessels in the United States to use TEDs in areas and at times

when there is a likelihood of intercepting sea turtles.

* * *

61. For those shrimp harvesting nations . . . whose shrimp

fishing environments do pose a threat to sea turtles, the Guide-

lines . . . set forth criteria upon which the Department of State

bases its determinations for certification under Section 609.
Court No. 98-09-02818 Page 21

The Department . . . certifies any such nation as having a

program to protect sea turtles in the course of shrimp trawl

fishing comparable to the U.S. program if the nation requires the

use of TEDs in a manner comparable to the TEDs requirements in

effect in the United States and if the nation has a credible

enforcement effort that includes monitoring for compliance and

appropriate sanctions. Because TEDs, if used properly, allow at

least 97 percent of captured sea turtles to escape from shrimp

trawl nets, the Guidelines provide that any nation which adopts

and enforces TEDs requirements comparable to those of the United

States will also be deemed to have achieved a comparable inci-

dental take rate' of sea turtles in its commercial shrimp trawl

fisheries.

* * *

63. In 1997, the Department of State . . . certified forty-two

shrimp harvesting nations pursuant to Section 609.

64. The Department of State has certified 24 nations as having

shrimp fishing environments that do not pose a threat of inci-

dental taking of sea turtles in the course of commercial shrimp

trawl fishing. Of those 24 nations, the Department determined

that the following 16 nations have shrimp fisheries in only cold

waters where there is essentially no risk of taking sea turtles:

Argentina, Belgium, Canada, Chile, Denmark, Finland, Germany,

Iceland, Ireland, the Netherlands, New Zealand, Norway, Russia,

Sweden, the United Kingdom and Uruguay. The Department certified
Court No. 98-09-02818 Page 22

the following eight nations on grounds that their fishermen only

harvest shrimp using manual rather than mechanical means to re-

trieve nets: the Bahamas, Brunei, the Dominican Republic, Haiti,

Jamaica, Oman, Peru and Sri Lanka.

65. The Department of State has also certified the following

nations . . . as having adopted programs to reduce the incidental

capture of sea turtles in shrimp fisheries comparable to the U.S.

program: Belize, Brazil, Colombia, Costa Rica, Ecuador, El Sal-

vador, Guatemala, Guyana, Honduras, Indonesia, Mexico, Nicaragua,

Nigeria, Panama, the People's Republic of China, Thailand, Trini-

dad and Tobago, and Venezuela.

I. The U.S. measures have not disrupted trade

66. The U.S. measures at issue in this dispute have not dis-

rupted the importation of shrimp into the United States. Those

measures went into effect with respect to the Complainants and

other shrimp harvesting nations outside the Wider Caribbean/

Western Atlantic region on May 1, 1996. Even though the measures

were in effect throughout the last two thirds of 1996, . . . U.S.

shrimp imports in 1996 were within 1 percent of the average ann-

ual level from 1993-1995.

67. Furthermore, were the U.S. measures at issue in this dispute

truly disruptive of trade, one would expect that a restriction in

supply would result in a corresponding increase in the price of

shrimp imports into the United States. The opposite has occurr-
Court No. 98-09-02818 Page 23

ed. The average unit value of U.S. shrimp imports declined be-
tween 1995 and 1996, falling from $9.52 (U.S.) per kilogram to

$9.30 (U.S.) per kilogram."15

This well-documented presentation was supplemented by

the government, in part, as follows:

. . . Section 609 is "made effective in conjunction
with restrictions on domestic production or consump-
tion." The Appellate Body interprets this criterion
to mean that the measures concerned impose restrictions
not just on the imported product but also with respect
to the comparable domestic product. The Appellate Body
has also stated that this requirement is one of "even-
handedness," and that there is no textual basis for
identical treatment of domestic and imported products.

61. These tests are met here. The United States
requires its shrimp trawl vessels that operate where
there is a likelihood of intercepting sea turtles to
use TEDs at all times. Section 609 applies comparable
standards to imported shrimp. The statute allows any
nation to be certified -- and thus to avoid any re-
striction on shrimp exports to the United States -- if
it meets criteria for sea turtle safety in the course
of shrimp harvesting that are comparable to criteria
applicable in the United States. In particular, for
those nations whose shrimp trawl vessels operate in
areas where there is a likelihood of intercepting sea
turtles, Section 609 allows for certification if such
nations adopt TEDs requirements comparable to those
in effect in the United States.16

15
United States -- Import Prohibition on Certain Shrimp and
Shrimp Products First Submission of The United States, WT/DSB/M/
31, § III (June 9, 1997) (all emphasis in original; supporting
citations omitted).
16
United States -- Import Prohibition of Certain Shrimp and
Shrimp Products Second Submission of The United States of Ameri-
ca, WT/DSB/M/31, paras. 60, 61 (July 28, 1997)(emphasis in orig-
inal; citing United States -- Standards for Reformulated and
Conventional Gasoline Report of the Appellate Body, WT/DS2/AB/R
(Jan. 29, 1996), and First Submission of The United States,
paras. 50-62).
Court No. 98-09-02818 Page 24

Notwithstanding these unrefuted, and largely irrefut-

able, averments17, the dispute-resolution panelists from Brazil,
Germany and Hong Kong did not accept the U.S. approach as com-

pletely consistent with the 1994 General Agreement on Tariffs

and Trade, concluding that it constituted

clearly a threat to the multinational trading system
. . . applied without any serious attempt to reach,
beforehand, a negotiated solution.

7.502 We therefore find that the US measure at issue
is not within the scope of measures permitted under
the chapeau of Article XX.18

17
See United States -- Import Prohibition of Certain Shrimp
and Shrimp Products Report of the Panel, WT/DS58/R (15 May 1998)
passim; Submission of The United States (Appellant) Before The
World Trade Organization Appellate Body, AB-1998-4, para. 5, p.
2 (23 July 1998)("The Panel in its findings does not take issue
with the factual assertions of the United States").
18
United States -- Import Prohibition of Certain Shrimp and
Shrimp Products Report of the Panel, WT/DS58/R, paras. 7.501,
7.502 (15 May 1998). Article XX provides, in pertinent part:

Subject to the requirement that such measures are
not applied in a manner which would constitute a means
of arbitrary or unjustifiable discrimination between
countries where the same conditions prevail, or a
disguised restriction on international trade, nothing
in this Agreement shall be construed to prevent the
adoption or enforcement by any contracting party of
measures:

* * *

(b) necessary to protect human, animal or plant
life or health;

* * *

(g) relating to the conservation of exhaustible
natural resources if such measures are made effective
in conjunction with restrictions on domestic production
or consumption; . . ..
(footnote continued)
Court No. 98-09-02818 Page 25

Whereupon the United States formally appealed to the WTO's

Appellate Body on the ground that,

[u]nder this improper reasoning, any measure falling
under any one of the Article XX exceptions would none-
theless be outside the scope of Article XX if a Panel,
in its own subjective view, believed that the measure
hypothetically could cause harm to some undefined,
idealized "trading system."

7. Not only is the Panel's adoption of this "threat
to the multilateral trading system" test inconsistent
with the text of the GATT 1994, . . . it also reflects
a fundamental misinterpretation of the object and pur-
pose of the World Trade Organization Agreement. The
WTO Agreement, which was the first multilateral trade
agreement concluded after the United Nations (UN) Con-
ference on Environment and Development, provides that
the rules of trade must not only promote expansion
of trade and production, but do so in a manner that
respects the principle of sustainable development and
protects and preserves the environment. The Panel's
"threat to the multilateral trading system" test would
make trade concerns paramount to all other concerns,
and is thus inconsistent with the object and purpose
of the WTO Agreement.

Submission of The United States (Appellant) Before The World

Trade Organization Appellate Body, AB-1998-4, paras. 6, 7 (23

July 1998) (footnote omitted). In doing so, it emphasized some

of the facts quoted above at length and originally presented to

the consolidated panel, including:

According to the Report of the Appellate Body in United States --
Standards for Reformulated and Conventional Gasoline, WT/DS2/
AB/R, p. 22, the proper application of this article involves
a two-tiered analysis: First, the regulation at issue must be
"provisionally justified" by one of the enumerated exceptions --
paragraphs (a) to (j). Second, the measure must satisfy the re-
quirements of the introductory clauses, the article's chapeau.
In other words, the measure, as applied, must not be either "ar-
bitrary or unjustifiable discrimination between countries where
the same conditions prevail", or "a disguised restriction on in-
ternational trade".
Court No. 98-09-02818 Page 26

The United States Government requires shrimp trawl
vessels that operate in waters subject to U.S. juris-
diction in which there is a likelihood of intercepting
sea turtles to use TEDs at all times. Because sea
turtles migrate widely, U.S. domestic measures to pro-
tect sea turtles would not be effective unless other
nations also act to protect them. Accordingly, U.S.
law (Section 609 of Public Law 101-162) calls for
bilateral and multilateral efforts to protect sea
turtles.

Id., para. 16 (footnotes omitted).19

II

Prior to issuance of the WTO Appellate Body Report, but

after the mandate of the Federal Circuit had come down, the State

Department determined to publish Revised Notice of Guidelines for

Determining Comparability of Foreign Programs for the Protection

of Sea Turtles in Shrimp Trawl Fishing Operations20, perhaps in

the hope of influencing the deliberations of that body before

19
While the Appellate Body did conclude that the consoli-
dated panel had erred in finding that the U.S. approach is not
within the scope of measures permitted under the chapeau of Ar-
ticle XX of the GATT 1994, and also in finding that accepting
non-requested information from non-governmental sources is in-
compatible under the WTO dispute-resolution process, it also
concluded, for reasons referred to hereinafter, that the

United States measure, while qualifying for provision-
al justification under Article XX(g), fails to meet
the requirements of the chapeau of Article XX, and,
therefore, is not justified under Article XX of the
GATT 1994.

United States -- Import Prohibition of Certain Shrimp and Shrimp
Products Report of the Appellate Body, WT/DS58/AB/R, para. 187
(12 Oct. 1998)(referred to and cited hereinafter as "WTO Appell-
ate Body Report").
20
63 Fed.Reg. 46,094 (Aug. 28, 1998) [referred to herein-
after as "1998 Revised Guidelines"].
Court No. 98-09-02818 Page 27

rendering its decision.21 The notice advises of the Department's

decision to "reaffirm", subject to "certain modifications"22, its

1996 Revised Guidelines, the enforcement of which had been en-

joined, in part, per this court's slip op. 96-165:

The Department of State reinstates its determina-
tion that the harvesting of shrimp with TEDs does not
adversely affect sea turtle species and that TED-caught
shrimp is therefore not subject to the import prohibi-
tion created by Section 609(b)(1). . . . [H]owever,
the Department . . . has decided to establish several
conditions and incentives relating to the importation
of such shrimp that are intended to address concerns
that have been raised about the effect of this deter-
mination on the conservation of sea turtle species.

63 Fed.Reg. at 46,095. Those concerns are stated to be that

foreign harvesters will fraudulently claim that shrimp have been

harvested with TEDs, that foreign nations which have established

regulatory programs comparable to the U.S. program will abandon

or limit them so that only trawlers harvesting shrimp for export

to the U.S. market will actually employ TEDs, and that other na-

21
Compare, e.g., transcripts of telephone conference with
counsel in this case on September 18, 1998, pp. 27-28 and of oral
argument on December 14, 1998, pp. 59, 84, 101 and WTO Appellate
Body Report, para. 5, p. 4 and n. 23 thereto, with AR Tab 6,
first two pages (decision "done solely for domestic reasons").
Defendants' counsel have seen fit to repeat these words, first
scribbled by defendant Eizenstat at the top of the State Depart-
ment's "Action Memorandum", in their memorandum of law, pp. 7-8,
38 and at oral argument, Tr. p. 100, but without any hint as to
what those reasons might have been. See also Dep't of State,
Notice of Proposed Revisions to Guidelines for the Implementation
of Section 609 of Public Law 101-162 Relating to the Protection
of Sea Turtles in Shrimp Trawl Fishing Operations, 64 Fed.Reg.
14,481, 14,482 (March 25, 1999) [hereinafter referred to as
"March 1999 Notice of Revisions"]("For reasons unrelated to the
WTO case, the Department . . . modified its implementing Guide-
lines on August 28, 1998").
22
63 Fed.Reg. at 46,095.
Court No. 98-09-02818 Page 28

tions which may be considering the adoption of such a program may

opt instead for equipping only those vessels trawling for shrimp

for the American market. See id. Of course, as the Department

indicates, only time might prove which of these materialize

antithetically to the concerns of Congress in enacting section

609. For the moment, the world is apprised of the U.S. govern-

ment's resurrected "decision to permit the importation of TED-

caught shrimp from uncertified nations". Id. See March 1999

Notice of Revisions, 64 Fed.Reg. at 14,482.

A

This decision has brought forth the above-named

plaintiffs, commencing this case via simultaneous filing of a

summons and complaint and application for temporary restraining

order and preliminary injunction. Among other relief23, they

request that the court declare that the resultant 1998 Revised

Guidelines are in violation of the Administrative Procedure Act

and section 609; enjoin the defendants

from allowing the importation of shrimp and shrimp pro-
ducts from any nation with commercial fishing operations
which may adversely impact sea turtles unless and until
the Secretary of State determines and certifies . . .
that the foreign nation has a current and enforceable
sea turtle protection program (including the require-
ment that TEDs are used on all shrimp trawling vessels),
and an incidental taking rate fully comparable to that
of the United States at the present time[24;]

23
See generally Plaintiffs' Complaint for Declaratory
Judgment, Review of Agency Action, Mandamus and Injunctive
Relief, § IX.
24
Id., p. 11, para. 5 (emphasis in original).
Court No. 98-09-02818 Page 29

and order the Secretary of State to make publicly available all

evidence supportive of a determination that a particular nation

has a comparable regulatory program and rate of incidental taking

of sea turtles.

The court afforded all parties an opportunity to be

heard on plaintiffs' application for immediate injunctive relief.

A temporary restraining order was denied, whereupon the plain-

tiffs have interposed a motion for judgment upon the record filed

herein by the defendants.

The court's jurisdiction over this kind of case has

been established to be pursuant to 28 U.S.C. §1581(i). See Earth

Island Institute v. Christopher, 6 F.3d 648 (9th Cir. 1993), and

Earth Island Institute v. Christopher, 19 CIT 812, 890 F.Supp.

1085 (1995). And it "shall review the matter as provided in

section 706 of title 5"25, U.S.C., which part of the Administra-

tive Procedure Act authorizes the court, among other things, to

set aside agency action found to be arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.

(1)

As submitted, the record is represented to include all

documents pertaining to the decision of Stuart E. Eizenstat, Un-

der Secretary of State for Economic, Business and Agricultural

Affairs, to revise the implementation of certain aspects of

25
28 U.S.C. §2640(e).
Court No. 98-09-02818 Page 30

section 609, as reflected in the notice published by the De-

partment26, supra. It reveals that the decision was based upon

the "Action Memorandum"27 in the name of the Acting Assistant

Secretary of State for Oceans and International Environmental

and Scientific Affairs, defendant Kimble herein. In a sub-

sequent letter to NFI, she explains the crux of the decision

to be:

. . . We remain of the view, as we argued before th[e]
Court [of Appeals for the Federal Circuit], that shrimp
caught in trawl nets equipped with . . . TEDs[] are not
"harvested with commercial fishing technology that may
adversely affect" species of sea turtles. Such shrimp
is thus not subject to the import prohibition that
Congress established in Section 609.

AR Tab 11, p. 3. See also AR Tab 6, p. 3. According to the

record, it was arrived at over the stated concerns and objec-

tions of a number of organizations committed to, if not expert

in, the protection and preservation of endangered species28,

including the government's own NMFS, which is the organization

within the Department of Commerce most directly involved in

26
Declaration of David A. Balton, Director of the Office of
Marine Conservation, Bureau of Oceans and International Environ-
mental and Scientific Affairs, U.S. Department of State, para. 2.
27
See AR Tab 6.
28
For example, the letter at AR Tab 1 to Secretary of State
Albright and U.S. Trade Representative Barshefsky was signed by
the heads of the Center for International Environmental Law, Cen-
ter for Marine Conservation, Community Nutrition Institute, De-
fenders of Wildlife, Earth Island Institute, Earthjustice Legal
Defense Fund, Environmental Defense Fund, Friends of the Earth,
Greenpeace, Humane Society of the United States, National Wild-
life Federation, Natural Resources Defense Council, and the
Sierra Club.
Court No. 98-09-02818 Page 31

compliance with the mandate of Congress in section 609. The

objections of the Assistant Administrator for Fisheries,

defendant Schmitten herein, were articulated, in part, as

follows:

. . . NMFS does not believe that DOS should return to
permitting the import of shipments of turtle excluder
device (TED) caught shrimp from uncertified countries.
We foresee several difficulties with this approach.

We believe that this approach will significantly di-
minish the conservation benefit of P.L. 101-162, Sec-
tion 609. By requiring that TEDs be used only on
those vessels that harvest shrimp for export to the
U.S. market, sea turtles will be put at greater risk
of incidental capture aboard non-TED equipped boats
in a nation's fleet.

This approach will also reduce the incentive for
nations to adopt comprehensive national programs to
reduce the incidental take of sea turtles. The "ship-
ment-by-shipment" authorization may also result in
some certified nations abandoning the comprehensive
programs they now have in place or curtailing enforce-
ment of such programs.

A "shipment-by-shipment" approach will also create
enforcement problems. It will be extremely difficult
to verify that shrimp being imported as TED-caught
from uncertified nations were actually harvested by
a trawler using a TED.

AR Tab 4, first page.

(2)

Whatever the underlying differences of opinion, de-

fendants' stated position herein is that their 1998 Revised

Guidelines are in accordance with section 609(b)(1), supra. In

summary, they argue that the guidelines conform to the plain

meaning of the statute, that its legislative history supports

their interpretation, and that any ambiguity should be resolved
Court No. 98-09-02818 Page 32

in a manner deferential to their administrative prerogatives

and/or that affects the fewest nations and shipments possible,

consistent with the doctrine articulated in Murray v. Schooner
Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

No doubt, this position, and that of the intervenor-

defendant, derive from their presentations on the merits to the

Court of Appeals for the Federal Circuit29, which did vacate this

court's slip op. 96-165 on the issue raised again herein, albeit

on procedural grounds "deemed to be without prejudice"30 to re-

newal. There also can be no doubt, and none of the parties argue

otherwise, that

[i]f the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent
of Congress.

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842-43 (1984); Earth Island Institute v. Chris-

topher, 19 CIT at 1479, 913 F.Supp. at 575.

The primary focus of the initial litigation over sec-

tion 609 was whether it was intended to be enforced worldwide,

that is, "within the geographic range of distribution of [en-

dangered] sea turtles"31, or just within the wider Caribbean/

29
See, e.g., supra n. 12.
30
147 F.3d at 1356.
31
Section 609(a)(5)(A), 103 Stat. at 1037, 16 U.S.C. §1537
note.
Court No. 98-09-02818 Page 33

western Atlantic, which was the government's challenged initial

preference and practice. The court held the statute's scope

to be

clear and unambiguous. . . . Its language includes
"all foreign governments which are engaged in, or which
have persons or companies engaged in, commercial fish-
ing operations which . . . may affect adversely [en-
dangered or threatened] species of sea turtles" and
"protection of specific ocean and land regions which
are of special significance to the health and stability
of such species of sea turtles" and "amendment of any
existing international treaty for the protection and
conservation of such species of sea turtles to which
the United States is a party" and "each nation" which
conducts commercial shrimp fishing operations within
the geographic range of distribution of such sea tur-
tles and which may affect them adversely. No language
of section 609 restricts its geographical purview, nor
can the court accept the premise that the statute is
simply silent on the matter.

19 CIT at 1479, 913 F.Supp. at 575 (emphasis in original; foot-

notes omitted). Apparently, the defendants now adhere to this

decision. See, e.g., 1996 Revised Guidelines; 1998 Revised

Guidelines; Part I B, supra; March 1999 Notice of Revisions.

That opinion of the court did uphold that part of the

State Department's Revised Guidelines for Determining Compar-

ability of Foreign Programs for the Protection of Turtles in

Shrimp Trawl Fishing Operations, 58 Fed.Reg. 9,015, 9,017 (Feb.

18, 1993), which notified "affected nations" that, to receive

certification pursuant to section 609(b)(2)(A) and (B), supra,

in 1994 and in subsequent years, they had "to require the use

of TEDs on all of their shrimp trawl vessels" and that the

take rates of sea turtles would be "deemed comparable if the[y]
Court No. 98-09-02818 Page 34

require that all shrimp trawl vessels use TEDs at all times".

See 19 CIT at 1483-84, 913 F.Supp. at 578. That standard of

comparison was based upon the requirement for U.S. trawlers32

and is continued in the 1998 Revised Guidelines as a basis for

certification of foreign harvesting nations. See 63 Fed.Reg. at

46,096. Indeed, the history of section 609's enforcement to date

does not reveal presidential certification of such nations, in-

cluding those of the wider Caribbean/western Atlantic region, to

Congress under subsections (b)(2)(A) and (B) other than on that

ground. Hence, Brazil, for example, has not been certified each

year, even though individual trawlers flying its flag are and

have been rigged with TEDs.33

It is the shrimp netted by such vessels around the world

32
See generally Dep't of Commerce, Nat'l Oceanic and Atmo-
spheric Admin., Sea Turtle Conservation; Shrimp Trawling Re-
quirements, 52 Fed.Reg. 24,244 (June 29, 1987).
33
Compare, e.g., Dep't of State, Bureau of Oceans and Int'l
Environmental and Scientific Affairs, Certifications Pursuant to
Section 609 of Public Law 101-162, 59 Fed.Reg. 25,697 (May 17,
1994)(Brazil certified because it "has established and is im-
plementing the legal requirement to use TEDs"), and Dep't of
State, Bureau of Oceans and Int'l Environmental and Scientific
Affairs, Certifications Pursuant to Section 609 of Public Law
101-162, 62 Fed.Reg. 19,157 (April 18, 1997)(Brazil recertified
because of regulation adopted "prohibiting shrimp trawling con-
ducted in ways harmful to sea turtles"), with Bureau of Oceans
and International Environmental and Scientific Affairs; Certi-
fications Pursuant to Section 609 of Public Law 101-162, 61 Fed.
Reg. 24,998 (May 17, 1996)(Brazil deleted from list of certified
nations), and Bureau of Oceans and International Environmental
and Scientific Affairs; Certifications Pursuant to Section 609 of
Pub.L. 101-162, 63 Fed.Reg. 30,550 (June 4, 1998)(Brazil did not
retain certification because it "failed to demonstrate . . . reg-
ulations requiring the use of . . . TEDs[] were being adequately
enforced").
Court No. 98-09-02818 Page 35

that is now granted entry to the expansive U.S. market by the 1998

Revised Guidelines on the ground quoted above, namely, the har-

vesting of shrimp with TEDs does not adversely affect sea turtle

species. And the intervenor-defendant, if not all of the defend-

ants, is of the view that this approach will encourage more ves-

sels from uncertified countries to equip their nets with TEDs,

thereby rescuing ever more endangered by-catch and also increasing

the likelihood of presidential certification of additional home-

port nations.

Whatever the appeal of this perception, the court

cannot and therefore does not conclude that it comports with the

expressed approach of Congress in section 609, which is notable

for its clarity of purpose and cohesiveness of content. Certain-

ly, Congress did not intend to, or in fact, leave room for the

kind of reversal of course the defendants attempt to renew

herein.34 Indeed, prior to this court's judgment in Earth Island

34
Defendants' record contains a letter from a member of
Congress who had voted for section 609 in 1989 and who, now as
Ranking Democratic Member of the Committee on Resources, U.S.
House of Representatives, corresponded with President Clinton
on June 23, 1998, in part, as follows:

. . . I have grave concerns about the Administration
implementing a shipment-by-shipment approach. Such an
approach is not only unenforceable, it is inconsistent
with the clear congressional intent of P.L. 101-162,
which requires certification that harvesting nations
have adopted a regulatory program governing the inci-
dental taking of such sea turtles that is "comparable"
to that of the United States. As a result of hard work
by Congress, the environmental community, and the Na-
tional Marine Fisheries Service, the U.S. has imple-
mented a comprehensive regulatory program to ensure

(footnote continued)
Court No. 98-09-02818 Page 36

Institute v. Christopher that the government was in violation of
the intent of Congress that section 609 apply to shrimp shipments

from everywhere in the world35, not just the wider Carribean,

that turtle excluder devices (TEDs) are used throughout
the U.S. shrimp fishery. Thus, for purposes of cert-
ifying harvesting nations under P.L. 101-162, the Ad-
ministration cannot merely attempt to satisfy itself
that individual shipments have been harvested using
TEDs; it must ensure that those nations have adopted
comprehensive TEDs protections.

AR Tab 2, first page.

To the extent others in Congress may have a different
opinion, none has been presented herein by the defendants. Be
that as it may, the court has already found that section 609's
legislative history, such as it is, does not sway intepretation
of the adopted language. See Earth Island Institute v. Chris-
topher, 19 CIT at 1421, 913 F.Supp. at 576.
35
In fact, the government's disregard of this fundamental
dictate of section 609, as reflected in subsection (a) thereof,
supra, until ordered to cease and desist by the court in 1996,
proved to be a predicate of the decision of the WTO Appellate
Body, to wit:

. . . The record does not . . . show that serious ef-
forts were made by the United States to negotiate sim-
ilar agreements [to the Inter-American Convention] with
any other country or group of countries before (and,
as far as the record shows, after) Section 609 was en-
forced on a world-wide basis on 1 May 1996. Finally,
the record also does not show that the appellant, the
United States, attempted to have recourse to such in-
ternational mechanisms as exist to achieve cooperative
efforts to protect and conserve sea turtles before im-
posing the import ban.

172. Clearly, the United States negotiated seriously
with some, but not with other Members (including the
appellees), that export shrimp to the United States.
The effect is plainly discriminatory and, in our view,
unjustifiable. The unjustifiable nature of this dis-
crimination emerges clearly when we consider the
cumulative effects of the failure of the United States

(footnote continued)
Court No. 98-09-02818 Page 37

the act was administered exclusively on an international basis,
as recently explained at length to the WTO. Consistent with the

mandate of section 609, paragraphs 61 and 64 quoted above show

the United States has taken into account the "shrimp fishing

environments" of harvesting nations that do and do not pose a

threat to sea turtles, not their individual citizens or companies

at work in those waters. Hence, Brazil, for example, with

trawlers outfitted with TEDs, still has been found to be a

harvesting nation with commercial fishing technology which "may"

affect adversely the endangered species of sea turtles and thus

within such expansive, "general" ambit of the section 609(b)(1)

prohibition, supra, "except as provided in paragraph (2)." Given

that clause in that context and the fact that general provisions

to pursue negotiations for establishing consensual
means of protection and conservation of the living
marine resources here involved, notwithstanding the
explicit statutory direction in Section 609 itself to
initiate negotiations as soon as possible for the
development of bilateral and multilateral agreements.
The principal consequence of this failure may be seen
in the resulting unilateralism evident in the applica-
tion of Section 609. As we have emphasized earlier,
the policies relating to the necessity for use of
particular kinds of TEDs in various maritime areas, and
the operating details of these policies, are all shaped
by the Department of State, without the participation
of the exporting Members. The system and processes of
certification are established and administered by the
United States agencies alone. The decision-making
involved in the grant, denial or withdrawal of
certification to the exporting Members, is, according-
ly, also unilateral. The unilateral character of the
application of Section 609 heightens the disruptive and
discriminatory influence of the import prohibition and
underscores its un justifiability.

WTO Appellate Body Report, paras. 171, 172 (citations omitted).
Court No. 98-09-02818 Page 38

rarely can be read to be dispositive of specific standards of a

carefully-constructed statutory scheme, the court is constrained

to conclude yet again that paragraph (1) of section 609(b) is

specifically contingent upon the certification procedure estab-

lished by section 609(b)(2), which offers the only congress-

ionally-approved breaches of the embargo, either via subpara-

graphs (A) and (B) or through (C). Paragraphs (b)(1) and (b)(2)

are pari materia; they cannot be read independently, or out of

the context adopted by Congress, including section 609(a), to

slow or stanch the extinction of species of sea turtles. And so

long as the 1998 Revised Guidelines report that the "foundation

of the U.S. program" continues, with "limited exceptions", to be

that "all other commercial shrimp trawl vessels operating in

waters subject to U.S. jurisdiction in which there is a likeli-

hood of intercepting sea turtles must use TEDs at all times"36,

the catch of vessels equipped with TEDs from nations without

such comparable foundation continues subject to embargo.

III

In the light of the foregoing, the court concludes that

that part of the 1998 Revised Guidelines which constitutes the

decision to permit the importation of TED-caught shrimp from un-

certified nations, on its face, is not in accordance with section

609, supra. Before any entry of judgment on plaintiffs' motion

herein, however, the court will await defendants' annual report

36
63 Fed.Reg. at 46,095. See generally Part I B, supra.
Court No. 98-09-02818 Page 39

to Congress pursuant to section 609(b)(2), their report to the

court on any responses to their March 1999 Notice of Revisions,

and the presentment of evidence on or before July 2, 1999 re-

garding the actual enforcement of the 1998 Revised Guidelines to

date, as well as of the 1996 Revised Guidelines between April and

November of 1996.

So ordered.

Dated: New York, New York
April 2, 1999

___________________________________
Judge