Opposition Brief — Verity v. Center for Environmental Education

No. 88-428

In The

Supreme Court of the United States

October Term, 1988

.

.

C. WILLIAM VERITY, JR., Secretary of Commerce, et al.,

Petitioners,

v.

CENTER FOR ENVIRONMENTAL EDUCATION, et al.,

Respondents.

sé.

-—

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

,%

-

BRIEF BY RESPONDENTS KOKECHIK FISHERMEN’S

ASSOCIATION AND QALUYAAT FISHERMEN’S

ASSOCIATION IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

,%

vv

DoNALD CRAIG MITCHELL

1335 F Street

- Anchorage, Alaska 99501

(907) 276-1681

Attorney for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

~ QUESTION PRESENTED

Whether the court of appeals correctly determined

that the Marine Mammal Protection Act prohibits the

Secretary of Commerce from issuing the Federation of

Japan Salmon Fisheries Cooperative Association a gen-

eral permit authorizing its members to set gillnets in the

North Pacific Ocean portion of the United States 200-mile

fishery conservation zone when, based upon uncon-

troverted evidence in the administrative record, the Sec-

retary knows that, if he permits them to be set, the

gillnets will entangle and drown fur seals, sea lions,

Pacific white-sided dolphin, harbor porpoise, killer whale

and other marine mammals in violation of the mor-

atorium on taking set forth in the Act?

il

TABLE OF CONTENTS

Page

ee re PO se 1

Reasons the Petition Should Be Denied............ y

1. The Circuit Court Correctly Interpreted the

Intent of Congress........-----eeeeeeeeeees 9

2. Legislative History Is Consistent with the

Circuit Court’s Interpretation of the Intent of

COMMPORS . o.oo. cease genus anne eeesansen ss 16

3. Congress Has Twice Ratified the Circuit

Court’s Interpretation of the MMPA........ 17

4. The Secretary’s Policy Arguments Are Not

Wheritorious....ocs cick dacs ee ee en eeeneanens 25

Completion . ox. cs cc ccks nes caus eee eee 29

iii

TABLE OF AUTHORITIES

CASES:

Blau v. Lehman, 368 U.S. 403 (1962).................. 21

Chevron U.S.A. Inc. v. N.R.D.C., 467 U.S. 837 (1984) .10, 16

Federation of Japan Salmon Fisheries Cooperative Ass‘n v.

Baldrige, 679 F. Supp. 37 (D.D.C. 1987)........ 8, 12, 27

Kokechik Fishermen's Ass'n v. Secretary of Commerce,

839 F.2d 795 (D.C. Cir. 1988)............ 8, 10, 13, 21

Motor Vehicle Mfrs. Ass'n v. State Farm Mutual, 463

ts a ar hy sods 4 sees sbaea bis bk sds <s ses 10

United States v. Bd. of Commrs. of Sheffield, Alabama,

ees bs bso bab aa binee ood eens 21

STATUTES:

Fisheries Amendments of 1982, Pub. L. No 97-389,

§ 201, 96 Stat. 1949-50 (codified at 16 U.S.C.

ce ee 5; 17

Magnuson Fishery Conservation and Manage-

ment Act of 1976, Pub. L. No. 94-265, 90 Stat.

331 (codified as amended at 16 U.S.C. § 1801 et

Nee ee ees eb esb 4 Rkaa dacavaccdseesane na 2

Serene SO CURA, OO BED 6 occ ccccccncconsadvacs 2

eR Sa | +) 3, 18

A aa | > 3

BES om, | 25

meceson 404, 16 U.S.C. § 1362 note ................. 2

iv

TABLE OF AUTHORITIES—Continued

Page

Marine Mammal Protection Act of 1972, Pub. L.

No. 92-522, 86 Stat. 1027 (codified as amended

at 16 UGC. & 1561 Gb O06.) noc cceccces an ccas enn 1

Satie T 20 Beas te BAS Skew cece cccuscunaceaeen 2

Bertin TE, 16 Uden MOE aces scbancsasiccnas 2, 18

Section 104, 16 USA... © 1374 .... 206600. 4, 14, 15, 19

acti BET, BO UA. OB TSEE ones cc can wsisvensaues Ye

Domtiats 156, WO Wit Bs i ve edesececawawenas 23-25

Marine Mammal Protection Act Amendments of

1988, Pub. L. 100-711, 102 Stat. 4755.............. 21

Voting Rights Act of 1965, Pub. L. No 89-110, 79

i oo ee eae hae eal eee ee 22

Voting Rights Act of 1975, Pub. L. No 94-73, 89

aad aa ees saa eee ae ee 22

Pub. L. No. 95-326, 92 Stat. 399 (1978) ............... 4

Pub. L. No. 97-58, 95 Stat. 979 (1981) ............... 20

Pub. L. No. 98-364, 98 Stat. 440 (1984) .............. 15

Pub. L. No. 100-629, 102 Stat. 3286 (1988)....... 21, 28

CONGRESSIONAL REPORTS:

H.R. Rep. No. 228, 97th Cong., Ist Sess. (1981)...... 20

H.R. Rep. No. 707, 92d Cong., Ist Sess. (1971) .. 16, 17

H.R. Rep. No. 968, 100th Cong., 2d Sess. (1988)..... 28

H.R. Rep. No. 970, 100th Cong., 2d Sess. (1988)..... 24

H.R. Conf. Rep. No. 1488, 92d Cong., 2d Sess.

Ln IER OR een n i Maes nat nae pp erie rant go kn -arhe wena RATE 17

Vv

TABLE OF AUTHORITIES-Continued

S. Rep. No. 592, 100th Cong., 2d Sess. (1988)........ 24

S. Rep. No. 863, 92d Cong., 2d Sess. (1972) ......... 17

CONGRESSIONAL HEARINGS:

Marine Mammals: Hearings on H.R. 690, et al., before

the Subcomm. on Fisheries and Wildlife of the

House Comm. on Merchant Marine and Fisheries,

TAG Soy, “TER BM. Gs ov 5 oc kee ee kbevesuess i. 17

Ocean Mammal Protection: Hearings on S. 685, et all,

before the Subcomm. on Oceans and Atmosphere of

the Senate Comm. on Commerce, 92d Cong., 2d

ween, Pests Tul CUR aos cckcccacncekasvacasess 17

Marine Mammal Proteciion Act Authorizations: Hear-

ing on H.R. 4189 before the Subcomm. on Fisheries

and Wildlife Conservation and the Environment of

the House Comm. on Merchant Marine and Fish-

eries, 100th Cong., 2d Sess. (1988)................. 23

Hearing on Marine Mammal Protection Act Reauthor-

ization before the National Ocean Policy Study of

the Senate Comm. on Commerce, Science and Trans-

portation, 100th Cong., 2d Sess. (1988)............. 24

CONGRESSIONAL RECORD:

PS Coy, Taek Pere CO io oi aS Siscenentaves 1

111 Cong. Rec. 12,698 (1965)..............000cceeeeee 1

117 Cong. Rec. 44,947-61 (1971)... 0.00. cece cee. 17

118 Cong. Rec. 7,683-716, 25,246-300, 25,422-40

CUPP ois ddcseevnccewccsUind dal eanen een 17

ai |

vi

TABLE OF AUTHORITIES-Continued

Page

128 Cong. Rec. 29,920-25 (1982) .............6- scenes 18

128 Cong. Rec. 30,050-57 (1982) ...........-. eee eee. 18

134 Cong. Rec. H8237-46 (daily ed. September 26,

er errr rer rrr re rrr re rer ere ey» 24

134 Cong. Rec. $16,336-46 (daily ed. October 14,

ee ret ar Batre ede) 24

REGULATIONS:

SO CB. B ZIG ZHAO) CIGST) co ccccccccccccccccsctess 11

FEDERAL REGISTER:

OR Bo Bs eee ery err rrr .. 15

46 Pap. REG. 10,7GS-CO CISSE) «co cccccccccccccces 5

46 Fep. Rec. 27,056-68 (1981) .........cccccccess ,5

ee cee. eee GN 6 ooo sc b0edeeus bake 20

52 Feo. Rec. 19,874-80 (1987).............2205- 6

53 Fep. Rec. 16,299-301 (1988)........... 20

53 Fep. Rec. 17,888-99 (1988)......... ic ae 19, 20

BILLS:

- H.R. 3942, 97th Cong 18

H.R. 4084, 97th Cong 19

H.R. 4189, 100th Cong >

_—-

vii

TABLE OF AUTHORITIES-—Continued

Page

Unrtep States Supreme Court Ru es:

| OTR Net 3 RS: OR nD: Peay nes 10

TREATIES AND INTERNATIONAL AGREEMENTS:

International Convention for the High Seas Fish-

eries of the North Pacific Ocean, May 9, 1952,

United States-Canada-Japan, 4 U.S.T. 380,

Ce EE P- deeRiddwendnbtsdedscddshseccece. |

Protocol Amending the International Convention

for the High Seas Fisheries of the North Pacific

Ocean, April 25, 1978, United States-Canada-

Japan, 30 U.S.T. 1095, T.I.A.S. No. 9242 ......3, 4, 26

Agreement Between the Government of the

United States of America and the Government

of the Union of Soviet Socialist Republics on

Mutual Fisheries Relations, May 31, 1988,

United States-Soviet Union........................ 28

STATEMENT

This case presents a simple question of statutory

construction in a complex factual context.

Each spring millions of salmon fry hatch in the

gravel of Alaska spawning streams, and then move down

and out the mouth of their rivers of origin into the North

Pacific Ocean where they spend two to six years before

migrating home. Aware of this fact, as early as 1930

Japanese fishermen began fishing for Alaska salmon in

the North Pacific Ocean with floating gillnets. See gener-

ally 98 Cong. Rec. A2987-89 (1952)(remarks of Rep. Tol-

lefson reprinting Edward Allen, The North Pacific Fisheries

Treaty — Friendly Settlement of a 20-year Dispute).

To stop the interceptions, in 1937 the Secretary of

State negotiated an agreement with the Government of

Japan (GOJ) pursuant to which GO] agreed to prevent its

nationals from gillnetting Alaska salmon. Id. However,

independent of the agreement, the Second World War

kept the Japanese fleet in port.

After the war, in 1952 the United States, Canada and

GO] entered into the International Convention for the

High Seas Fisheries of the North Pacific Ocean, May 9,

1952, United States-Canada-Japan, 4 U.S.T. 380, T.1.A.S.

No. 2786 (INPFC). As part of the INPFC, GO] agreed that

its nationals would not fish in the North Pacific Ocean

east of 175° west longitude, the so-called “abstention

line,” west of which Alaska salmon were not thought to

congregate. Although biologists soon determined that

significant numbers of Alaska salmon were present west

of the line, despite repeated requests by the United States

that it do so, GO] refused to renegotiate the INPFC. See

111 Cong. Rec. 12,698 (1965)(remarks of Senator Bartlett).

In 1972 Congress enacted the Marine Mammal Pro-

tection Act (MMPA). Pub. L. No. 92-522, 86 Stat. 1027

(codified as amended at 16 U.S.C. § 1361 et seq.).

l

2

Except to the extent authorized by statute or permit,

§ 101(a) of the MMPA, 16 U.S.C. § 1371(a), imposed a

moratorium, i.e., “a complete cession,” on all activities

that would result in the taking of marine mammals,

including takings that occur when marine mammals are

entangled and drowned in gillnets. Although § 101(a)

exempted commercial fishermen from compliance with

the moratorium for two years, beginning in 1974 the

MMPA required fishermen whose nets entangle and

drown marine mammals to either obtain a permit author-

izing them to do so or stop fishing.

Although the United States knew that gillnets set in

the North Pacific Ocean by Japanese vessels fishing for

salmon pursuant to the INPFC were entangling and

drowning significant numbers of marine mammals, since

MMPA jurisdiction stopped a few miles offshore, the

Japanese fleet was not required to comply with the

MMPA.

In 1976 the jurisdictional situation changed when

Congress enacted the Magnuson Fishery Conservation

and Management Act (MFCMA). Pub. L. No. 94-265, 90

Stat. 331 (codified as amended at 16 U.S.C. § 1801 et seq.).

Section 102 of the MFCMA, 16 U.S.C. § 1812, asserted

United States jurisdiction over fish inside a 200-mile fish-

ery conservation zone (FCZ) surrounding the coastline of

the United States. To conform MMPA jurisdiction over

marine mammals to the jurisdiction the MFCMA asserted

over fish, § 404 of the MFCMA, 16 U.S.C. § 1362 note,

amended § 3 of the MMPA, 16 U.S.C. § 1362, to expand

the definition of “waters under the jurisdiction of the

United States” to include the FCZ. In the North Pacific

Ocean the practical effect of the amendment was to sub-

ject Japanese vessels setting gillnets inside the FCZ to the

moratorium on entangling and drowning marine

mammals.

3

With respect to salmon fishing, the MFCMA created a

legal anomaly. Section 201 of the MFCMA, 16 U.S.C.

§ 1821, limited foreign fishing for a fish stock to that

portion of the optimum yield of the stock that would not

be harvested by United States fishermen. Since United

States fishermen were capable of harvesting the entire

optimum yield of Alaska salmon stocks, by implication,

the § 201 prohibited foreign fishing for salmon. However,

the INPFC authorized Japanese vessels to gillnet millions

of Alaska salmon inside the FCZ.

To resolve the conflict, § 202 of the MFCMA, 16

U.S.C. § 1822, instructed the Secretary of State to renego-

tiate the INPFC. As a result, in 1978 the United States,

Canada and GOJ negotiated a treaty that superseded the

MFCMA. The treaty authorized Japanese vessels to set

gillnets inside the FCZ between June 10 and July 31 to

catch Alaska and Soviet! salmon. Protocol Amending the

International Convention for the High Seas Fisheries of

the North Pacific Ocean, April 25, 1978, United States-

Canada-Japan, 30 U.S.T. 1095, T.I.A.S. No. 9242.

The new treaty also contained a provision regarding

compliance with the MMPA. As a result of the MFCMA

amendment to the MMPA definition of the term “waters

of the United States,” the MMPA now prohibited Japa-

nese vessels from setting gillnets inside the FCZ unless

the vessels first acquired certificates of inclusion issued

1 Salmon of Alaska and Soviet origin commingle in the

North Pacific Ocean. Ironically, each spring GOJ negotiates a

fishery agreement with the Soviet Union in which the Soviets

establish a quota on the number of salmon Japanese vessels

may catch by species. While the United States, through the

INPFC, allows Japanese vessels to fish inside the FCZ without

cost, in addition to imposing quotas, the Soviet Union charges

GOJ a multimillion dollar fee for the privilege of catching

Alaska and Soviet salmon inside the United States FCZ.

4

pursuant to permits issued pursuant to § 104 of the

MMPA, 16 US-€>§-4374.

Aware of the situation, GOJ negotiated a three-year

exemption. In pertinent part, § 1(c) of the annex to the

text of the 1978 version of the INPFC states:

The requirement of the Government of the United

States that Japanese fishing vessels engaged in this

fishery have on board a Certificate of Inclusion relat-

ing to the incidental taking of marine mammals shall

be suspended for the period ending June 9, 1981

during which period the Governments of Japan and

the United States shall conduct joint research, shall

cooperate to determine the effect of the Japanese

salmon fishery on marine mammal populations, and

shall work to reduce or eliminate the incidental catch

of marine mammals in the fishery.

30 U.S.T. at 1111-12.

Shortly thereafter, Congress implemented the bargain

GOJ had struck by amending the North Pacific Fisheries

Act to exempt Japanese vessels from compliance with the

MMPA until June 10, 1981. Pub. L. No. 95-326, 92 Stat.

399, 405 (1978). However, to ensure that GOJ and its

nationals did not misconstrue Congress’s intent, the

amendment announced that: “After June 9, 1981, the tak-

ing of marine mammals incidental to fishing operations

by Japanese vessels within the fishery conservation zone

shall be regulated pursuant to the Marine Mammal Pro-

tection Act of 1972.” Id.

Pursuant to § 104 of the MMPA, on January 19, 1981,

the Federation of Japan Salmon Fisheries Cooperative

Association (Federation)? submitted an application

2 The Federation is an umbrella organization whose mem-

bership includes the owners and operators of mothership pro-

cessing vessels and catcherboats that fish for salmon in the

North Pacific Ocean pursuant to the INPFC.

5

to the Secretary of Commerce (Secretary) that requecied a

permit authorizing its catcherboats’ gillnets to take Dall’s

porpoise, fur seals, sea lions, harbor porpoise, Pacific

white-sided dolphin and killer whales. 46 Fed. Reg.

10,785-88 (1981). After considering available data, the

Secretary denied the application as to harbor porpoise,

Pacific white-sided dolphin and killer whales. Id. How-

ever, after an administrative hearing, the Secretary issued

the Federation a three-year permit to entangle and drown

Dall’s porpoise, fur seals and sea lions. 46 Fed. Reg.

27,056-68 (1981). The permit enabled Federation catcher-

boats to obtain certificates of inclusion that GOJ, through

its agreement to the text of the annex to the 1978 protocol,

had previously acknowledged were a condition prece-

dent to fishing inside the FCZ.

At the Federation’s request, in 1982 Congress

amended the North Pacific Fisheries Act to extend the

permit to June 10, 1987. Fisheries Amendments of 1982,

Pub. L. No. 97-389, § 201, 96 Stat. 1949-50 (codified at 16

U.S.C. § 1034(b)).

On July 18, 1986, the Federation filed an application

for a new permit. The application requested permission

to annually take 5,500 Dall’s porpoise, 450 fur seals and

25 sea lions. On December 1 through 7, 1986, an adminis-

trative law judge held a hearing on the application. In

addition to the Federation and the Secretary, the

Kokechik and Qaluyaat Fishermen’s Associations

(Kokechik) and_a consortium of environmental organiza-

tions (CEE) participated as parties in the proceeding. On

March 6, 1987, the judge recommended that the Secretary

issue the Federation a permit authorizing its catcherboats

to annually take 1,750 Dall’s porpoise and 45 fur seals,

with an annual five percent reduction in the porpoise

6

quota. On May 14, 1987, the Under Secretary of Com-

merce published a final decision which announced that

the Secretary intended to issue the Federation a three-

year permit authorizing its catcherboats to take a total of

6,039 Dall’s porpoise. 52 Fed. Reg. 19,874-80 (1987).

Significantly, the decision indicated that the permit

would not authorize Federation catcherboats to entangle

and drown fur seals, sea lions, harbor porpoise, Pacific

white-sided dolphin or killer whales, even though uncon-

troverted evidence presented during the hearing indi-

cated that if the Secretary allowed Federation

catcherboats to set gillnets inside the FCZ the nets would

unlawfully entangle and drown the aforementioned spe-

cies. Horoshi Ogiwara, an experienced Federation fleet

commander, testified as follows:

MITCHELL: If for some reason the Federation

should not be granted a permit to take

Dall’s porpoise, in your judgment as a

mothership commander is there any

way that your catcherboats could

operate without taking Dall’s porpoise

to some extent?

OGIWARA: I think it is almost impossible.

MITCHELL: If for some reason the Federation were

not granted a permit to take fur seals,

is there anything that you could

instruct your catcherboat captains to

do to change the way they fish that

could guarantee to the United States

government that zero fur seals would

be taken?

OGIWARA: As I stated before, it is extremely diffi-

cult to totally eliminate the incidental

take. Therefore, in that event, it may be

we can’t continue the operation any

longer.

MITCHELL: I don’t want to be redundant, but this

is important. Does that mean the

7

answer is that there is no way that

you could guarantee to the United

States government that your catcher-

boats would not catch fur seals? Is

that correct, yes or no?

OGIWARA: Well, if we are required that we can’t

take any animals then we can’t con-

tinue the operation.

MITCHELL: And would that also be true if the

animals that you had to guarantee that

you absolutely would not take were

sea lions?

OGIWARA: Well according to our experience, since

1981 the record indicates that only one

sea lion was caught in one season.

However, the sea lion is there in the

waters where we are operating so that

no matter how small that number is, as

is indicated by the record, if there is

one animal taken, then again we can’t

say that we will never take any

animals.

Administrative Hearing Transcript at 501-02.

Dr. Linda Jones, the manager of the cetacean research

program at the National Marine Mammal Laboratory and

the Secretary’s most knowledgeable witness on the sub-

ject, substantiated Captain Ogiwara’s testimony:

MITCHELL: Having been on research vessels in the

vicinity of the fishery do you believe

that there is any way that a catcher-

boat could knowingly avoid taking a

harbor porpoise if it were in the gen-

eral vicinity of where harbor porpoises

are known to be?

JONES: No. It’s a passive gill net.

Id. at 933.

In response to the final decision, the Federation,

Kokechik and CEE filed petitions for review in the United

States District Court for the District of Columbia, and

8

Kokechik filed a motion for a preliminary injunction. On

June 15, 1987, the court granted Kokechik’s motion and

enjoined the Secretary from issuing the permit. Federation

of Japan Salmon Fisheries Cooperative Ass‘n v. Baldrige, 679

F. Supp. 37 (D.D.C. 1987). In so holding, the court first

noted that:

[T]he Secretary has interpreted the MMPA so as to

allow him to issue a permit to the Federation to take

one species of mammal, Dall’s porpoise, for which

the required finding of no disadvantage based on

optimum sustainable population has been made,

even though the Secretary knows other species will

also be taken and as to those other species no such

finding has been made.

Id. at 46.

The court then determined that the Secretary’s inter-

pretation of the MMPA contravened the express intent of

Congress. According to the court:

The MMPA imposes an absolute moratorium on all

takings of marine mammals. The only way this mor-

atorium may lawfully be ignored is through explicit

Congressional action, as has been done for the Feder-

ation twice in the past, or by meeting the burden of

proof necessary to allow the agency to find that a

single taking will not disadvantage a particular stock

because that stock is within the range of its optimum

sustainable population. For the Secretary to issue a

permit for only the Dall’s porpoise, when it is clear

that other marine mammals are certain to be taken

yet no permit was issued for such mammals because

a finding could not be or was not made, appears, at

this juncture, clearly contrary to the MMPA.

Id. at 47.

On February 16, 1988, the United States Court of

Appeals for the District of Columbia Circuit affirmed.

Kokechik Fishermen’s Ass'n v. Secretary of Commerce, 839

F.2d 795 (D.C. Cir. 1988). In so holding, the court

explained its reasoning as follows:

9

The MMPA effects a moratorium on the taking of

marine mammals. Congress decided to undertake

this decisive action because it was greatly concerned

about the maintenance of healthy populations of all

species of marine mammals within the the ecosys-

tems they inhabit. Exceptions tc this moratorium

clearly evidence a concern with the relationship

between the activity engaged in and its effect on

marine mammals and their ecosystem. It is the duty

of the Secretary to take a systematic view of an

activity’s effect on marine mammals. A view that the

permit process functions merely to determine which

takes will be exempted from civil penalties is

inconsistent with this duty because it allows - subject

to the civil penalty price - illegal takings of other

protected marine mammals. The Secretary has no

authority, by regulation or other action, to issue a

permit that allows conduct prohibited by that Act.

Nonetheless, the Secretary chose to disregard these

incidental takings [of fur seals, sea lions, harbor por-

poise, northern right whole dolphin and Pacific

white-sided dolphin] as “negligible,” an undefined

and ambiguous standard at best. The MMPA, how-

ever, does not provide for a “negligible impact”

exception to its permitting requirements where inci-

dental takings are not merely a remote possibility but

a certainty.

Id. at 801-02.

With three dissenting votes, the circuit court denied

petitions for rehearing en banc. And on June 9, 1988, this

Court denied motions for a stay. As a result, Federation

catcherboats did not set gillnets inside the FCZ during

the 1988 fishing season.

REASONS THE PETITION SHOULD BE DENIED

1. The Circuit Court Correctly Interpreted the

Intent of Congress.

Whether this Court should review the circuit court

opinion is a matter of judicial discretion that should only

10

be exercised “when there are special and important rea-

sons therefor.” United States Supreme Court Rule 17.

Although the subject matter is novel and the outcome of

importance to the parties, this is not a special case. As the

circuit court noted at the outset of its opinion, this action

presents “a question of pure statutory interpretation.”

Kokechik, supra at 797. Questions of statutory constructien

are not unique. Each year the circuit courts routinely

interpret the intent of Congress embodied in hundreds of

statutes, and this case is no exception to the rule.

The Secretary argues to the contrary by asserting that

the circuit court “departed from this Court’s teachings in

Chevron U.S.A. Inc. v. N.R.D.C., 467 U.S. 837, 843 (1984).”

Petition for Writ of Certiorari at 11. But contrary to the

Secretary’s protestation, the circuit court opinion is con-

sistent with Chevron.

Chevron holds that if the text of a statute indicates

that the intent of Congress is clear with respect to the

subject at issue between the parties “that is the end of the

matter; for the Court, as well as the agency, must give

effect to the unambiguously expressed intent of Con-

gress.” Id. at 842-43. If it is, an agency may not implement

the statute in a manner different than Congress intended,

even if implementing Congress’s intent may produce a

result the agency believes is bad policy, ill-conceived,

wrong or plain stupid. As Chief Justice Rehnquist has

observed: “[An agency] may not choose not to enforce

laws of which it does not approve, or to ignore statutory

standards in carrying out its regulatory functions.” Motor

Vehicle Mfrs. Ass’n v. State Farm Mutual, 463 U.S. 29, 59 n.

* (1983) (Rehnquist, J., concurring in part and dissenting

in part).

i1

In the instant action, after reading the text of the

statute, three of the four judges who considered the ques-

tion have concluded that Congress intended the MMPA

to mean what it says, i.e., that the Act imposes “a com-

plete cession” on the taking of all marine mammals and

the Secretary may not permit activities to occur that he

knows will result in the unlawful taking of marine mam-

mals, even if the number of animals taken unlawfully is

small.?

As Captain Ogiwara and Dr. Jones testified, if the

Federation is issued a permit to take Dall’s porpoise and

3 The subject of this action is the Secretary’s decision to

issue a permit. However, the Federation argues that the subject

is the propriety of the exercise of enforcement discretion. Fed-

eration Brief in Support of Petition for Writ of Certiorari at 4-6.

In a similar vein, the Secretary makes the startling assertion

that permits authorize takings, not “fishing operations per se,”

and that the permit at issue here “does not authorize the

Federation’s fishing operations. It merely allows a specified

number of incidental takings of one type of marine mammal

(Dall’s porpoise) in the event that the Federation engages in

those fishing operations.” Petition for Writ of Certiorari at 19.

Among its other defects, the Federation’s argument ignores the

fact that the purpose of imposing civil penalties is to compel

changes in conduct so that the conduct will stop producing

unlawful results. However, as Captain Ogiwara and Dr. Jones

testified, other than by not being set, there is no way catcher-

boat gillnets can avoid taking marine mammals in violation of

the MMPA. The Secretary’s argument is similarly defective.

His own regulation requires each catcherboat to have a certifi-

cate of inclusion “aboard the vessel while it is engaged in

fishing operations.” 50 C.F.R. § 216.24(c)(3) (1987). But catcher-

boats may not be issued certificates until the Federation is

issued a permit. Since the Secretary has been enjoined from

issuing the Federation a permit and catcherboats have not been

issued certificates of inclusion, during the 1988 season the

catcherboats did not set gillnets inside the FCZ.

12

its catcherboats allowed to set their nets, the unlawful

entanglement and drowning of fur seals, sea lions, harbor

porpoise, Pacific white-sided dolphin, killer whales and

other marine mammals in violation of the moratorium is

unavoidable.* A result the Secretary has a nondiscretion-

ary duty to prevent. See 16 U.S.C. § 1377(a).

But the Secretary denies that he has the duty. Accord-

ing to the Secretary, Congress has granted him authority

to exercise administrative discretion, based upon his situ-

ational assessment of the public interest, to permit or not

permit Federation catcherboats to set gillnets that he

knows will entangle and drown marine mammals in vio-

lation of the MMPA. As his petition makes the argument:

We do not, of course, suggest that the Secretary lacks

discretion to consider the effects of commercial fish-

ing activities on one species in deciding whether to

issue a permit for the incidental taking of another by

those same fishing activities . . . The Secretary con-

tends only that the MMPA does not compel his denial

of a permit for the taking of one species whenever a

permit cannot be issued for another species poten-

tially affected. (emphasis in original)

Petition for Writ of Certiorari at 17-18 n. 9.

In support of his interpretation of congressional in-

tent, the Secretary relies on Judge Starr’s dissent below.

Id. at 15-20. However, with all due respect to Judge Starr,

4 The district court found Captain Ogiwara’s and Dr.

Jones’ testimony determinative. According to the court: “Other

than not setting their nets at all, there is nothing the captains

and crews of Federation catcherboats can do to avoid entang-

ling and drowning marine mammals and sea birds while fish-

ing for salmon.” Federation of Japan Salmon Fisheries Cooperative

Ass'n, supra at 42.

13

his analysis is flawed. Judge Starr concluded that Con-

gress has not considered the precise question raised in

this action. Therefore, an intent should be imputed to

Congress to allow the Secretary to implement the MMPA

in whatever manner advances whatever policy choice he

deems appropriate. But Judge Starr reaches this result not

by reading the MMPA, but by reasoning that “one must

in conscience wonder whether a reasonable Congress

would have desired the odd outcome of calling a com-

plete halt to important fishing operations with clear for-

eign policy complications.” Kokechik, supra at 803-04.

What Judge Starr forgets is that Congress may adopt

policies judges consider unreasonable. Like the Secretary,

judges have no authority to correct Congress’s errors.

Their job is to discern and enforce Congress’s intent, not

second-guess its judgment. As the majority of Judge

Starr’s panel correctly concluded: “If it is appropriate to

grant foreign commercial fishermen some leeway to take

marine mammals incidentally in carrying out their com-

mercial fishing operations for salmon, it is for the Con-

gress, not the Secretary to decide.” Id. at 802.

Judge Starr’s construction also produces a result

opposite the result Congress enacted the MMPA to

achieve.

The Federation’s permit application requested per-

mission to take 5,500 Dall’s porpoise, 450 fur seals and 25

sea lions. The Secretary determined that taking Dall’s

porpoise would be lawful, but that entangling and

drowning fur seals and sea lions would be unlawful.

But what if he had found the reverse? What if the

Secretary had determined that taking 450 fur seals and 25

sea lions would be consistent with the MMPA, but that

14

entangling and drowning 5,500 Dall’s porpoise would

not? In such a situation, would “a reasonable Congress”

grant the Secretary authority to issue the Federation a

permit for seals and sea lions to enable catcherboats to

obtain certificates of inclusion authorizing them to set

gillnets he knows will unlawfully entangle and drown

thousands of porpoise when the unlawful takings could

be prevented by not issuing the permit?

If the only difference between the two situations is

the number of mammals taken unlawfully, then, as the

circuit court correctly noted, in 1981 Congress made a

clear policy choice: as discussed below, it authorized the

Secretary to permit fishermen to take small numbers of

marine mammals without complying with § 104 of the

MMPA, if the fishermen are citizens of the United States

and the mammals taken are not members of depleted

populations.

And in 1988 Congress amended the MMPA to exempt

United States fishermen and foreign fishermen other than

the Federation from compliance with the prohibition on

taking depleted populations.

Finally, the Secretary asserts that Judge Starr’s inter-

pretation of the MMPA has the benefit of not differentiat-

ing between permitting catcherboats to set gillnets the

Secretary knows at the outset will unlawfully entangle

and drown marine mammals, and the situation in which

a permit is validly issued but, after the fishing begins, the

quota for a particular marine mammal population

included in the permit is reached. See Petition for Writ of

Certiorari at 20-21. However, the two situations a'e not

the same. In the first case, unlawful takings are inevita-

ble. In the second, unlawful takings are only inevitable if,

15

when the quota is reached, the permittee refuses to stop _

fishing.®

But no matter what the Secretary believes the proper

policy, the decision is not his to make. Deciding the

proper balance between the national interest in protecting

marine mammals and the Federation’s interest in killing

them is a choice Congress reserved to itself. And speak-

ing through the text of the MMPA, Congress has decided

that Federation catcherboats should not be allowed to set

gillnets that will unlawfully entangle and drown fur

seals, sea lions and other marine mammals, even in small

numbers.

5 Pursuant to § 104(b)(2)(D) of the MMPA, 16 U.S.C.

§ 1374(b)(2)(D), the Secretary may condition issuance of a

permit on compliance with whatever terms he deems appropri-

ate. In the situation in which a permit authorizes a fishing

vessel to take several marine mammal species and the quota

with respect to the taking of one of the species is reached, the

Secretary can require the vessel to stop fishing. Indeed, the

Secretary imposed exactly that requirement on the United

States tuna fleet. Because no quota for eastern spinner dolphin,

= a depleted species, was included in its permit, if a tuna boat

captain observed eastern spinner dolphin in a school of por-

poise commingled with tuna, the Secretary prohibited him

from setting his net. See 42 Fed. Reg. 22,575 (1977). In 1984

Congress did what the Secretary could not: it allocated the

tuna fleet a quota of 2,750 eastern spinner dolphin to enable

the fleet to continue fishing when tuna and eastern spinner

dolphin are commingled. Pub. L. No. 98-364, § 201, 98 Stat. 440,

441 (codified at 16 U.S.C. § 1374(h)(2)(B)(iii)(IID)) (1984).

16

2. Legislative History Is Consistent with the Cir-

cuit Court’s Interpretation of the Intent of

Congress.

Since the intent of Congress in the text of the MMPA

is clear, as this Court has instructed, “that is the end of

the matter.” Chevron, U.S.A., Inc. v. N.R.D.C., supra at 842.

However, to whatever extent it may be relevant, the

legislative history is consistent with the plain meaning of

the text, and, when read in proper context, none of the

snippets the Secretary and the Federation cite as contrary

authority are inconsistent with that conclusion. The

report of the Committee on Merchant Marine and Fish-

eries, for example, describes the limited authority Con-

gress intended the MMPA to delegate the Secretary to

allow marine mammals to be taken in violation of the

moratorium. In pertinent part, the report states:

Before any marine mammal may be taken, the appro-

priate Secretary must first establish general limita-

tions on the taking, and must issue a permit which

would allow that taking. In every case, the burden is

placed upon those seeking permits to show that the

taking should be allowed and will no’ work to the

disadvantage of the species or stock of animals

involved. If that burden is not carried — and it is by

no means a light burden - the permit may not be

issued. The effect of this set of requirements is to

insist that the management of the animals be carried

out with the interests of the animals as the prime

consideration. (emphasis added)

H.R. Rep. No. 707, 92d Cong., 1st Sess. 18 (1971).

And in situations, such as the case at bar, in which

protecting marine mammals and exploiting them for eco-

nomic gain conflict, the committee instructed the Secre-

tary to implement the MMPA “for their [i.e., the

mammals’] benefit and not for the benefit of commercial

exploitation.” Id. at 22.

17

3. Congress Has Twice Ratified the Circuit Court’s

Interpretation of the MMPA.

According to his petition, Congress has “implicitly

endorsed the Secretary’s reading” of the MMPA. Petition

for Writ of Certiorari at 20. In support of this assertion,

the Secretary cites the 1982 enactment of a three-year

extension of the Federation’s 1981 permit. Fisheries

Amendments of 1982, Pub. L. No. 97-389, § 201, 96 Stat.

1950-51 (codified at 16 U.S.C. § 1034(b))(1982). Since he

knew when he issued the permit that catcherboat gillnets

would entangle and drown harbor porpoise, Pacific

white-sided dolphin, killer whales and other marine

mammals that were not included in the permit, the Secre-

tary reasons that Congress must have had the same

knowledge. And since it knew, Congress would not have

extended the permit unless it thought the result consis-

tent with the MMPA.

However, Congress had no such knowledge.

The moratorium on taking marine mammals and the

terms and conditions pursuant to which the Secretary

would be authorized to allow takings in specific cases

were the subject of exhaustive hearings. Marine Mammals:

Hearings on H.R. 690, et al., before the Subcomm. on Fisheries

and Wildlife of the House Comm. on Merchant Marine and

Fisheries, 92d Cong., 1st Sess. (1971). Ocean Mammal Pro-

tection: Hearings on S. 685, et al., before the Subcomm. on

Oceans and Atmosphere of the Senate Comm. on Commerce,

92d Cong., 2d Sess., Parts I and Ii (1972). They were

reviewed and approved by two committees, H.R. Rep.

No. 707, 92d Cong., 1st Sess. (1971); S. Rep. No. 863, 92d

Cong., 2d Sess. (1972), debated, 117 Cong. Rec. 44,947-61

(1971); 118 Cong. Rec. 7,683-716, 25,246-300, 25,422-40

(1972), and renegotiated in a conference committee, H.R.

Conf. Rep. No. 1488, 92d Cong., 2d Sess. (1972).

In contrast, in 1982 the Federation’s permit was

extended without hearings, without consideration by the

18

committees that exercise oversight jurisdiction over the

MMPA, and with no debate. Rather, in the waning

moments of the 97th Congress, Senator Packwood

arranged for the Commerce Committee to discharge H.R.

3°42, a bill that had previously passed the House. He

then persuaded the Senate to pass, without a scintilla of

debate,® a substitute for the House text of H.R. 3942 that,

for the first time, included § 201, the section extending

the permit. 128 Cong. Rec. 29,920-25 (1982). When H.R.

3942 returned to the House, rather than requesting the

appointment of a conference committee or asking that the

bill be referred to the Subcommittee on Fisheries and

Wildlife Conservation and the Environment for hearings

on § 201, Representative Breaux, the sponsor of H.R.

3942, moved the House to accept the Senate version of his

bill. Id. at 30,050-57.

To assert that § 201 embodies the 97th Congress’s

“implicit endorsement” in 1982 of the Sec-»iary’s 1981

decision to allow Federation catcherboats to entangle and

drown harbor porpoise, Pacific white-sided dolphin,

killer whales and other marine mammals in violation of

the moratorium the 92d Congress mandated in 1972 con-

travenes the facts.

What the facts reveal is that Congress has twice

ratified the circuit court’s interpretation of the MMPA.

In 1981 Congress amended § 101(a) of the MMPA to

deal squarely with the matter that is the subject of the

instant dispute between the parties: the

6 Senator Packwood’s floor statement explaining his sub-

stitute for H.R. 3942 is preceded by a dot or “bullet.” A bullet

identifies a statement published in the Congressional Record

that was not spoken by the member on the floor. Senator

Packwood’s remarks were submitted to the Congressional

Record in writing after the Senate passed H.R. 3942.

eT

19

taking of small numbers of marine mammals during the

course of commercial fishing operations. In 1981 Repre-

sentative Breaux decided that requiring permits issued

pursuant to § 104 of the MMPA to engage in commercial

fishing and other activities that would result in the take

of small numbers of marine mammals was expensive and

administratively cumbersome. Consequently, when he

introduced H.R. 4084, a package of MMPA amendments,

Representative Breaux included an amendment that

authorized the Secretary to issue permits for the take of

small numbers of marine mammals without requiring

permit applicants to comply with § 104.

The text of the Breaux amendment read as follows:

Permits may be issued by the Secretary for the

taking of small numbers of marine mammals of

species or population stocks that are not depleted.

Such permits, which shall not be subject to § 104,

shall require the permittees to comply with such

reporting requirements regarding the taking as are

deemed necessary by the Secretary.

Section 2, H.R. 4084, 97th Cong., 1st Sess. (July 9, 1981).

Had the amendment been enacted into law as intro-

duced, in the instant case the Secretary could have issued

the Federation a permit pursuant to § 104 to take Dall’s

porpoise, and then, pursuant to the Breaux amendment,

included fur seals, sea lions and other marine mammals.”

7 This result assumes that fur seals, sea lions and other

marine mammals that entangle themselves and drown in

catcherboat gillnets are not members of depleted populations.

In fact, at least three populations are depleted. The Secretary

has declared Pribilof Island fur seals depleted, 53 Fed. Reg.

(Continued on following page)

20

But the Subcommittee on Fisheries and Wildlife Con-

servation and the Environment opposed this result.

Although the subcommittee agreed that the Secretary

should be given authority to authorize fishermen to take

small numbers of nondepleted marine mammals without

obtaining a § 104 permit, it limited the opportunity to do

so to fishermen who are “citizens of the United States.”

H.R. Rep. No. 228, 97th Cong., Ist Sess. 2 (1981). The

members of the Committee on Merchant Marine and

Fisheries, and later the House and Senate, agreed with

this result and enacted the subcommittee’s substitute for

the Breaux amendment into law. Pub. L. No. 97-58, 95

Stat. 979, 980 (codified at 16 U.S.C. § 1371(a)(4)) (1981).

Consequently, unless the Secretary lawfully issues

the Federation a permit pursuant to § 104 that, in addi-

tion to Dall’s porpoise, authorizes the take of fur seals,

sea lions and other marine mammals the Secretary knows

will entangle themselves and drown in catcherboat gill-

nets, Congress has required the Secretary to enforce the

moratorium by preventing the nets from being set.

(Continued from previous page)

17,888-99 (1988), and announced his intent to declare sea lions

depleted, 53 Fed. Reg. 16,299-301 (1988). With respect to Com-

mander Island fur seals, the Secretary has determined that:

Historic data indicate that 4 of 21 rookeries on the Com-

mander Islands are now occupied and that the pre-exploi-

tation population may have exceeded 1 to 1.7 million fur

seals. If so, and if, as the parties have agreed, 60 percent of

the pre-exploitation population represents the lower

bound of OSP, the current population is most certainly

well below OSP [i.e., depleted] even if it is stable or

increasing.

52 Fed. Reg. 19,878 (1987).

21

The circuit court found the Breaux amendment, as

enacted, a determinative expression of congressional

intent. According to the court:

The Secretary has no authority, by regulation or any

other action, to issue a permit that allows conduct

prohibited by that Act [i.e., the MMPA]. Nonetheless,

the Secretary chose to disregard these incidental tak-

ings [of marine mammals other than Dall’s porpoise]

as “negligible,” an undefined and ambiguous stan-

dard at best. The MMPA, however, does not provide

for a “negligible impact” exception to its permitting

requirements where incidental takings are not merely

a remote possibility but a certainty.

As enacted, § 1371(a)(4) [i-e., the Breaux amendment]

creates a narrow exception for incidental, not inten-

tional, takings having a negligible impact on the

species involved “by citizens of the United States

while engaging in commercial fishing operations,

....” The Secretary is not authorized to extend this

— flexibility to the Japanese nor is he authorized to

create a new undefined statutory exception under the

heading of “negligible,” which clearly has the effect

of avoiding the strictures of the MMPA and congres-

sional intent.

Kokechik, supra at 802.

Last and most definitively, on November 23, 1988,

President Reagan signed the Marine Mammal Protection

Act Amendments of 1988. Pub. L. No. 100-711, 102 Stat.

4755 (1988). The statute is important evidence that, as a

matter of national policy, Congress has decided not to

Overturn the circuit court interpretation of the MMPA

insofar as it applies to the Federation. See Blau v. Lehman,

368 U.S. 403, 412-13 (1962)(holding that Congress’s

refusal to amend a statute subsequent to a circuit court

opinion interpreting its original intent is evidence that

the circuit court interpretation was correct). See also

United States v. Bd. of Commrs. of Sheffield, Alabama, 435

U.S. 110, 134 (1978) (holding that when, in amending a

— ——

22

statute, Congress voices approval of the statute’s prior

interpretation, Congress should be treated as having

adopted the prior interpretation).®

Three months after the circuit court issued its opin-

ion, the Subcommittee on Fisheries and Wildlife Conser-

vation and the Environment held a hearing on H.R. 4189,

a bill to reauthorize the MMPA, at which William Evans,

Under Secretary of Commerce for Oceans and Atmo-

sphere, testified as follows:

The National Marine Fisheries Service (NMFS) has

interpreted its authority under the MMPA to include

discretion to issue permits for incidental taking if the

populations covered by the permit are within OSP,

without proving that all other species that might be

taken are also within OSP. However, in a recent deci-

sion involving a permit allowing a take of Dall’s

porpoise incidental to the Japanese salmon fishery,

the United States Court of Appeals rejected NMFS’s

interpretation. In a two to one decision, the court

ruled that NMFS did not have the authority to issue a

permit for Dall’s porpoise since other marine mam-

mals (such as the fur seal) which were not demon-

strably at OSP also were likely to be taken.

Unless this decision is overturned or Congress

amends the Act, NOAA may not be able to renew the

general permits to the U.S. domestic fishing industry

8 Sheffield involved the interpretation of the intent of Con-

gress embodied in the Voting Rights Act of 1965. Pub. L. No.

89-110, 79 Stat. 437 (1965). Although the opinion speaks of the

Voting Rights Act of 1975 having “re-enacted” the 1965 Act, the

1975 Act actually amended the 1965 Act. See Voting Rights Act

of 1975, Pub. L. No. 94-73, 89 Stat. 400 (1975). The Marine

Mammal Protection Act Amendments of *988 bear the same

relationship to the MMPA that the Voting Rights Act of 1975

bears to the Voting Rights Act of 1965.

23

that expire at the end of 1988 because depleted spe-

cies or species of unknown status might be taken.

Marine Mammal Protection Act Authorizations: Hearing on

H.R. 4189 before the Subcomm. on Fisheries and Wildlife

Conservation and the Environment of the House Comm. on

Merchant Marine and Fisheries, 100th Cong., 2d Sess. 216

(1988)(statement of William Evans)[hereinafter House

Hearing].

Testifying on the Federation’s behalf, Takenobu Tak-

ahashi, an official of the Japan Fisheries Association

(JFA), was even more forthright. According to Mr.

Takahashi:

The JFA strongly urges the United States Congress,

should the Kokechik decision not be judicially

reversed, to amend the MMPA so as to allow inciden-

tal take of an insignificant number of marine mam-

mals from species that have not been included in

permits issued under the MMPA in the past, without

discrimination between foreign fisheries and U.S.

domestic fisheries.

Id. at 265 (statement of Takenobu Takahashi).

After considering his request, the subcommittee met

Secretary Evans halfway: in the tradition of the Breaux

amendment, it adopted an amendment that adds a new

§ 114 to the MMPA. The section exempts United States

fishermen and foreign groundfish fishermen from com-

pliance with the circuit court’s interpretation of the

MMPA insofar as it applies to the take of depleted spe-

cies, but purposely leaves the holding intact insofar as it

applies to the Federation. As the Committee on Merchant

Marine and Fisheries explained the decision:

Subsection (a) specifies that the new § 114 will take

effect immediately on the date of enactment of this

Act and will remain in effect until October 1, 1993.

During that time period, this section, rather than

| — EEO

24

§§ 101, 103, and 104 of the MMPA, shall govern the

incidental taking of marine mammals by commercial

fishermen other than tuna fishermen. The subsection

also provides that this interim regime will be avail-

able only to persons using vessels of the United

States and vessels which have valid fishing permits

issued under § 204(b) of the Magnuson Fishery Con-

servation and Management Act. By limiting the

exception in this way, the Committee intends that the

Japanese salmon gillnet fleet which has been pre-

cluded from operation in the U.S. Exclusive Eco-

nomic Zone by a decision of the U.S. Court of

Appeals in Kokechik Fishermen's Association v. Secre-

tary of Commerce will not have the provisions of § 114

available to it. The Committee does not intend § 114

of (sic) distu:b the holding in that case as it applies to

the Japanese salmon gillnet fleet.

H.R. Rep. No. 970, 100th Cong., 2d Sess. 21 (1988).

The House agreed with the committee’s policy choice

and passed the Marine Mammal Protection Act Amend-

ments of 1988 by unanimous vote. 134 Cong. Rec.

H8237-46 (daily ed. September 26, 1988).

In the Senate, Secretary Evans and Mr. Takahashi

presented the same testimony they presented in the

House of Representatives. Hearing on Marine Mammal Pro-

tection Act Reauthorization before the National Ocean Policy

Study of the Senate Comm. on Commerce, Science and Trans-

portation, 100th Cong., 2d Sess. 193, 275 (1988)(statements

of William Evans and Takenobu Takahashi). However,

after considering the matter, the Committee on Com-

merce, Science and Transportation adopted the House’s

new § 114. S. Rep. No. 592, 100th Cong., 2d Sess. 3-5,

15-23 (1988). The Senate agreed with the committee’s

decision and passed its version of the House bill by

unanimous vote. 134 Cong. Rec. $16,336-46 (daily ed.

October 14, 1988).

25

Although the Secretary and Judge Starr may question

its wisdom, Congress has decided not to relieve the Fed-

eration of its obligation to comply with the MMPA as the

Act has been construed by the circuit court. Having done

so, the doctrine of separation of powers requires that

Congress’s policy choice not be disturbed.

4. The Secretary’s Policy Arguments Are Not

Meritorious.

In addition to his statutory construction argument,

the Secretary makes three policy arguments. According to

the Secretary, implementation of the circuit court opinion

“would be likely to have a devastating effect on this

nation’s fishing industry as well as upon foreign

nationals who seek to fish in waters subject to the juris-

diction of the United States,” may prompt GOJ to with-

draw from the INPFC in which case “Japanese

interception [outside the FCZ] of salmon of United States

origin could dramatically increase, leading to severe

losses for domestic salmon fishermen,” and “may com-

promise ongoing efforts to implement a comprehensive

fisheries agreement with the Soviet Union.” Petition for

Writ of Certiorari at 22-24.

None of the Secretary’s arguments are meritorious.

With respect to the effect on domestic fishermen and

foreign nationals other than the Federation, as described

above, after considering the matter, Congress added a

new § 114 to the MMPA that grants the Secretary author-

ity to exempt United States fishermen and foreign

nationals fishing with permits issued pursuant to § 204(b)

of the MFCMA, 16 U.S.C. § 1824(b), from compliance

with the circuit court opinion insofar as it applies to the

take of depleted species. As a result, as a matter of

congressional policy, Federation members are now the

only fishermen, foreign or domestic, who may not fish if

it is likely that their nets will entangle and drown fur

el

26

seals, sea lions and other marine mammals that are mem-

bers of depleted populations.

With respect to his theory that, unless the circuit

court opinion is reversed, GOJ will withdraw from the

INPFC, the Secretary expressed the same concern to Con-

gress. In his testimony before the Subcommittee on Fish-

eries and Wildlife Conservation and the Environment,

Secretary Evans told the subcommittee that:

Although we are seeking reversal of the Court ruling,

the Japanese salmon fis 7 — not be able to le pl

ate this summer in the U.S. EEZ as contemplated by

the International North Pacific Fisheries Convention

(INPFC). As a result, Japan may withdraw from, or

seek to renegotiate the INPFC. This would allow

them to fish in areas where the take of North Ameri-

can origin salmon and marine mammals would be

higher than when Japan fishes inside the U.S. EEZ

and targets Asian stocks of salmon.

House Hearing at 224.

After considering Secretary Evans’ views, the sub-

committee, and later Congress, rejected them. For good

reason. First, GO] must give a year’s notice prior to

withdrawing from the INPFC.* To date, it has not done

% In pertinent part, article XII of the INPFC states:

This Convention shall continue in force until one year

from the day on which a Contracting Party shall give

notice to the other Contracting Parties of an intention of

terminating the Convention, whereupon it shall terminate

as to all Contracting Parties.

30 U.S.T. at 1110.

—"

27

50.'° And second, should GO] withdraw, the Federation

is not free to fish the North Pacific Ocean with abandon.

As discussed above, the Soviet Union closely regulates

the Federation salmon fishery. The Soviet Union has been

reducing the Federation’s catch quotas, and recently

announced its intent to compel GOJ to end the Japanese

high seas salmon fishery in the North Pacific Ocean by

1992.

Finally, with respect to his assertion that the circuit

court opinion “may compromise ongoing efforts to imple-

. ment a comprehensive fisheries agreement with the

Soviet Union,” although afforded an opportunity to do

so, the Secretary did not express this concern to Con-

gress. The reason he expresses it here is difficult to

discern.

Last May the Secretary of State’! concluded negotia-

tions with the Soviet Union on a comprehensive fisheries

agreement. Agreement Between the Government of the

United States of America and the Government of the

Union of Soviet Socialist Republics on Mutual Fisheries

10 When the argument was raised below, the district court

held that the possibility that GO] would withdraw from the

INPFC was “speculative.” Federation of Japan Salmon Fisheries

Cooperative Ass'n, supra at 48. The court's assessment proved

correct. On November 1 - 2 and 4, 1988, the INPFC held its

annual meeting in Tokyo, Japan. GO] did not withdraw from

the INPFC.

1! Interestingly, the Solicitor General identifies the Depart-

ment of Commerce, rather than the Department of State, as the

source of concern about the effect the circuit court opinion may

have on the United States’ relationship with the Soviet Union.

Petition for Writ of Certiorari at 24.

OE

28

Relations, May 31, 1988, United States-Soviet Union.’

The agreement authorizes United States nationals to fish

inside the Soviet FCZ and vice versa. With respect to

marine mammals, article VI of the agreement provides:

Each Party shall, consistent with its national law, take

appropriate measures to ensure that its nationals and

vessels refrain from harassing, ae capturing or

killing any marine mammal within the zone of the

other Party, or attempting such actions, except as

may be provided for by an international agreement

which is in force for both Parties, or in accordance

with specific authorization and controls established

by the Party in whose zone such actions occur.

The agreement was negotiated after the circuit court

opinion was issued, and Kokechik has actual knowledge

that the Soviet Union was aware of the opinion. Conse-

quently, it is reasonable to assume that, with respect to

fishing by Soviet nationals inside the FCZ, the Soviet

Union understood and agreed that the phrase “specific

authorization and controls established by the Party in

whose zone such actions occur” refers to the MMPA as

interpreted by the circuit court. Assuming that to be the

case, there is no basis for the Secretary’s concern.

12 The agreement was subsequently approved by Con-

gress. Pub. L. No. 100-629, 102 Stat. 3286 (1988). See H.R. Rep.

No. 968, 100th Cong., 2d Sess. 7-8 (1988).

ieee neeeenneeneeeeumiienl

29

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DONALD CrRaiG MITCHELL

1335 F Street

Anchorage, Alaska 99501

(907) 276-1681

Attorney for Respondents

November 1988