Appendix — Balelo v. Baldrige
Supreme Court brief1984
Ask Donna
What actually matters in this document.
Text
Ar
> . - ; Oifice nnn nce
PD ee + Be
IN THE
Supreme Court of the United States L sre “
meee ee
October Term, 1983
JOHN R. BALELO, et al.,
Petitioners,
v.
MIAALCOLM BALDRIGE, Secretary of Commerce
of the United States, et al.,
Respondents.
APPENDICES TO PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A. Kaymond Randolph Raymond F. Zvetina
4801 Massachusetts Avenue, N.W. (Counsel of Record)
Washington, D.C. 20016 HASKINS, NUGENT, NEWNHAM,
(202) 363-0800 KANE & ZVETINA
110 West ‘'C’’ Street, Suite 2300
Of Counsel San Diego, California 92101
(619) 236-1323
Shirli Fabbri Weiss
GRAY, CARY, AMES & FRYE
1200 Prospect Street, Suite 575
La Jolla, California 92037
(619) 454-9101
Counsel for Petitioners
INTERIM PRINTING & MAILING COMPANY
1105 WEST MORENA BOLL EVARO SAN OEGO CAL PORNMIA 82110 — 275 3050
TABLE OF CONTENTS
Opinions of the United States Court of Appeals
for the Ninth Circuit en banc
Opinions of the original three-judge panel of the
Uniied States Court of Appeals for the Ninth
Circuit
Opinion of the United States District Court for
the Southern District of California
Judgment of the United States Court of Appeals
forthe Ninth Circuit
United States Constitution, Fourth Amendment
United States Code, Title 16, Section 137
United States Code, Title 16, Section 138]
Code of Federal Regulations, Title §0, Section
216.24(f)
36a
48a
SY¥a
60a
la
John R. BALELO, Andrew Castagnola, Leo Correia, Manuel S. Jorge,
Bryan R. Madruga, Harold Medina, John A. Silva, Ralph F. Silva,
Jr., George Sousa, Manuel S. Vargas, Jr., John B. Zolezzi, Jr.,
Plaintiffs-Appellees,
Malcolm BALDRIGE, Secretary of Commerce of the United States,
Richard A. Frank, Administrator, National Oceanic and Atmospheric
Administration and Terry Leitzell, Assistant Administrator for
Fisheries, National Marine Fisheries Service, Defendants-Appellants,
Environmental Defense Fund, Inc., et al., Intervenors-Defendants-
Appellanis.*
UNITED STATES of America, Plaintiff,
Ve
$50,178.80, THE MONETARY VALUE OF 57 TONS OF TUNA,
Defendant,
Gladiator Fishing, Inc., Claimant.**
Nos. 81-5806, 81-5807 and 82-5433.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted En Banc
Sept. 15, 1983.
Decided Jan. 24, 1984.
*Appeal from the United States District Court for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding.
**Appeal from the United States District Court for the Central District of California
Laughlin Waters, District Judge, Presiding.
2a
Before BROWNING, SNEED, KENNEDY, ANDERSON, TANG,
SCHROEDER, PREGERSON, ALARCON, FERGUSON, NELSON
and CANBY, Circuit Judges.
ALARCON, Circuit Judge:
In Balelo v. Klutznick, 519 F.Supp. 573 (S.D.Cal.1981), plaintiffs-
appellees, who are captains of tuna purse seiners (hereinafter the Cap-
tains), instituted this action against defendants-appellants (hereinafter
the Secretary) seeking declaratory and injunctive relief.’ The district
court granted a declaratory judgment invalidating subsection (f) of
regulation S50 C.F.R. § 216.24 (1981) promulgated by the Secretary of
Commerce?’ pursuant to the Marine Mammal Protection Act (hereinafter
MMPA), 16 U.S.C. § 1371.
Under the regulation, the Captains are permitted to take porpoise dur-
ing commercial fishing operations only if they comply with certain condi-
tions. They must allow government observers to board and accompany
the vessel on regular fishing trips ‘‘for the purpose of research or observ-
ing operations.’* SO C.F.R. 216.24(f). The regulation further authorizes
the collection of data which may be used in MMPA enforcement pro-
ceedings. /d. The district court ruled that the regulation was unconstitu-
tional only insofar as it permitted the use of observer collected data in
MMPA enforcement proceedings.
In United States v. $50,178.80, the Monetary Value of 57 Tons of
Tuna and Gladiator Fishing, Inc., Cv. No. 79-4466-LEW (MX)
1. Defendants-appellants include: the Secretary of Commerce; the Administrators of
National Oceanic and Atmospheric Administration (NOAA) and National Marine
Fisheries Service (NMFS), the Assistant Administrator for Fisheries; the Environmen-
tal Defense Fund, Inc.; and the Defenders of Wildlife.
2. The Secretary delegated authority to carry out the provisions of the MMPA to the
NOAA Administrator and the Assistant Administrator for Fisheries of the NMFS.
3. See, e.g., 50 C.F.R. § 216.24(a)(1) (1981): which states that:
No marine mammals may be taken in the course of a commercial fishing operation
unless; The taking constitutes an incidental catch . . ., a general permit and cer-
tificate(s) of inclusion have been obtained and such taking is not in violation of
such permit, certificate(s) and regulation.
Section (c)(2) provides that ‘‘[i]n order to receive a certificate of inclusion, the
operator shall have satisfactorily completed required training.’’ $50 C.F.R. §
216.25(c2) (1981). The certificate of inclusion must be renewed annually.
3a
(C.D.Cal. April 21, 1982), a civil forfeiture proceeding, the district court
denied a motion to suppress evidence of observer collected data.
We have taken these matters en banc to consider whether the regula-
tion is valid under the MMPA, and if so, whether it violates the fourth
amendment. For the reasons set forth below, we have concluded that:
(1) the regulation was authorized under the broad rule-making power
delegated by Congress to the Secretary; (2) the regulation is consistent
with the policies and objectives of the MMPA; and (3) the regulation
falls within the pervasively regulated industry exception to the warrant
requirement of the fourth amendment.
FACTUAL AND STATUTORY BACKGROUND
The Captains utilize a method of fishing for yvellow-fin tuna which
results in the incidental taking* of certain species of porpoise. Porpoise
tend to swim in association with yellow-fin tuna in the eastern tropical
Pacific. The porpoise is larger and more active on the ocean’s surface.
Thus, the Captains can locate yellow-fin tuna by spotting porpoise.
Purse seine nets are then set around schools of porpoises. The tuna
swimming beneath them are encircled when the net is closed or ‘tpursed"’
around them. During this operation, significan: numbers of porpoise are
injured or drowned. Their carcasses are discarded into the sea. In the
two years preceding the enactment of the MMPA in 1972, the incidental
taking resulted in more than 600,000 porpoise mortalities. Committee
Jor Humane Legislation Inc. v. Richardson, 414 F.Supp. 297, 300
(D.D.C.), aff'd, §40 F.2d 1141 (D.C.Cir.1976).
Congress’ overriding purpose in enacting the MMPA was the protec-
tion of marine mammals. Congress declared the immediate goal of the
MMPA to be ‘that the incidental kill or incidental serious injury of
marine mammals permitted in the course of commercial fishing opera-
tions be reduced to insignificant levels approaching a zero mortality and
4. SO C.F.R. § 216.3 (1981) provides that:
**Take’’ means to harass, hunt, capture, collect, or kill, or attempt to harass, hunt,
capture, collect, or kill, any marine mammal, including, without limitation, any of
the following: The collection of dead animals, or parts thereof: the restraint or
detention of a marine mammal, no matter how temporary; tagging a marine mam-
mal; or the negligent or intentional operation of an aircraft or vessel, or the doing
of any other negligent or intentional acts which result in the disturbing or molesting
of a marine mammal.
da
serious Injury rate.” 16 U.S.C. § 1371(a)(2) (1976-1982). To accom-
plish this goal, Congress imposed a moratorium on the taking and
Importing of marine mammals. 16U.S.C. § 1371(a) (1976-1982). Atwo-
Vear exemption trom the moratorium tor the taking of marine mammals
incidental to commercial fishing operations was allowed. 16 U.S.C. §
1371(ay(2) (1976), amended by 16 U.S.C. § 1371(a)(2) (1982). The legis-
lative history indicates that the exemption was provided ‘‘tor the refine-
ment of these fishing gear modifications”* which industry representatives
protfered as a solution to the porpoise mortality problem. Carmynittee
for Humane Legislation, 414 &.Supp. at 30] In addition, the Act
lirected the ‘immediate’? undertaking of a research and development
program to devise improved tishing methods and gear so as to reduce the
Incidental taxing of marine mamuinals in connection with commercial
fishing. 16 U.S.C. § 138T(a) LY
Although the commercial fishing industry was exempted for two vear
from the moratorium, the incidental taking of mammals during this time
was conditioned on industry compliance with section 1381. See, e.g . 16
re T ( \1 sho rey Ne
new u 1 te i ried that the proviem wa ched.”” Committee
r Humane Leeish n, in Richurdson, 414 b. Supp. at 301 n. 8 (quoting Hear
ines on HR MO Before the Subcomm, on Fisheries and Wildlife Conservation of
he House Comp Verchunt Murine and Fisher Yod Cong S Yart la
148 estimo ( f lOc \I ) | ( y t prop ‘
yoOra i i ar Yportu oO
fevelop wh nls pimitler r Humane Leegisk
414 F Supp x y Hearing on H.R. 1082 pra, at 407)
6 iat S<( S }38] (] 976) nr
( T Chal l )
(.:) R search , eve ment pr roe re , { nore ithorization of
Propriauons
Ihe Secreta t e! shich the Natio Ocean Atmospheric
\dn i n ne (he ferred tt ecuion as the
“Secreta } edy auth and directed to immediately undertake a pro
gram of research and devel tor purpose of devising improved fishing
methods and gear so as to reduce to the maximum extent practicable the incidental
taking Of marine mammals tn connection with commercial fishing. At the end ot
the full twenty-tour calendar month period following the date of the enactment ot
this Act [enacted Oct. 21, 1972], the Secretary shall deliver his report in writing to
the Congress with respect to the results u. such research and development. For the
purposes of this section, there is hereby authorized to be appropriated the sum of
$1,000,000 for the fiscal year ending June 30, 1973, and the same amount for the
nent fiscal year. Funds appropriated for this section shall remain available until ex-
pended
Sa
U.S.C. § 1371(a)(2) (1976), amended by 16 U.S.C. § 1371(a)(2) (1982).
Subsection (d) of section 1381 requires the industry to allow agents of the
Secretary ‘‘to board and to accompany any commercial fishing vessel . . .
on a regular fishing trip for the purpose of conducting research or
observing Operations in regard to the development of improved fishing
methods and gear as authorized by this section.’’ 16 U.S.C. § 1381(d)
(1976-1982). Since expiration of this two-year exemption in 1974, the
taking of marine mammals incidental to commercial fishing must be pur-
Suant to a permit issued by the Secretary, 16 U.S.C. § 1371(a)(2), ‘‘sub-
ject to regulations prescribed by the Secretary in accordance with section
1373."’ 16 U.S.C. § 1371(a)(2) (1976-1982).
Section 1373 requires the Secretary to consider, in promulgating the
regulations, the ‘‘existing and future levels of marine mammal species
and population stocks,’’ !6 U.S.C. § 1373(b)(1) (1976-1982), and the
“marine ecosystem and related environmental considerations,’’ 16
U.S.C. § 1373(b)(3) (1976-1982). The regulations may also restrict the
taking of porpoise by species, number, age, sex, or other factors. 16
U.S.C. § 1373(c) (1976-1982). In addition to the rule-making authority
conferred upon the Secretary, 16 U.S.C. § 1373, the MMPA provides for
(b) Reduction of level of taking of marine mammals incidental to commercial
fishing operations
The Secretary, after consultation with the Marine Mammal Commission,
,
authorized and directed to issue, as soon as practicable, such regulations, covering
the twenty-four-month period referred to in section [1371] of this title as he deems
necessary or advisable, to reduce to the lowest practicable level the taking of
marine mammals incidental to commercial fishing operations. Such regulations
shall be adopied pursuant to section §§3 of tithe §, United States Code. In issuing
such regulations, the Secretary shall take into account the results of any scientific
research under subsection (a) of this section and, in each case, shall provide a
reasonable time not exceeding four months tor the persons affected to implement
such regulations
. . , . . .
(d) Research and observation
Furthermore, after timely notice and during the period of research provided in this
section, duly authorized agents of the Secretary are hereby empowered to board
and to accompany any commercial fishing vessel documented under the laws of the
United States, there being space available, on a regular fishing trip for the purpose
of conducting research or observing operations in regard to the development of im
proved fishing methods and gear as authorized by this section. Such research and
observation shall be carried out in such manner as to minimize interference with
fishing operations. The Secretary shall provide for the cost of quartering and
maintaining such agents. No master, operator, or owner of such a vessel shall im-
pair or in any way interfere with the research or observation being carried out by
agents of the Secretary pursuant to this section
6a
the imposition of civil and criminal penalties for violations of the provi-
sions of the Act or the regulations or permits issued thereunder. 16
U.S.C. § 1375(a) (1982).
In 1974, the Secretary promulgated a regulation, S0C.F.R.§ 216.24(f)
(1974), in language virtually identical to that set forth in section 1381,
the statutory observer program, that required the placement of observers
on vessels.
Pursuant to the powers granted under the MMPA, the Secretary pro-
mulgated the reguiation at issue here. The challenged regulation, effec-
tive January 1, 1981, requires as a condition of engaging in fishing opera-
tions that vessel owners:
(1)... [S]hall, upon the proper notitication by the [NMFS], allow an
observer duly authorized by the secretary to accompany the vessel on
any or all regular fishing trips for the purpose of conducting research
and observing operations, including collecting information which may
he used in civil or criminal penalt) proceedings, forfeiture actions, or
permit or certificate Sanctions,
(4) The Secretary shall provide for the payment of all reasonable costs
directly related to the quartering and maintaining of such observers on
board such vessels. A vessel certificate holder who has been notified
that the vessel is required to carry an observer, via certified letter from
the National Marine Fisheries Service, shall notify the office trom
which the letter was received at least five days in advance of the fishing
voyage to facilitate observer placement. A vessel certificate holder
who has fatled to comply with the provisions of this section may not
engage in fishing operations for which a general permit is required.
60) C.F.R. § 216.24(f) (1981) (emphasis added).*
7. SOC.F.R. § 216.14(/ (1974), umended by 80 C.F.R. § 216.140) (1981) provides in
part
Any duly authorized agents of the Secretary may from time to time, after timely
oral or written notice to the vessel owner _ board and or accompany commer:
cial fishing vessels on regular fishing trips, for the purpose of conducting
research or observing operations
To compare the text of section 13R1(d), the statutory observer program, see note 6
supra
8. Subsections (2) and (3) and section (g) provide
(2) Research and observation duties shall be carried out in such a manner as to
minimize interference with commercial fishing operations, The navigator shall
7a
The Captains appear to have no Objection to the observers’ scientific
role on board ship. Their objection is directed solely at those provisions
of the 1981 regulation which authorize the use of observer collected data
in enforcement Proceedings. In the Captain's opening brief we are told
that: ‘The District Court's injunction properly Stripped the observer
program of its unauthorized and impermissible search function and
restored it to its pristine role of Pure “cientific fact-gathering.’’ Ap-
pellees’ opening brief at 9 (emphasis added),
IMPLIED CONGRESSIONAL AL THORIZATION
{1} The first issue we must address is whether the 198] regulation is
authorized by the rule-making power delegated by Congress to the
Secretary. See FCC y. Schreiber, 381 U.S. 279, 290. 291, 85 S.Ct. 1489,
1467, 1468, 14 L.Ed.2d 383 (1965) (Court first addressed whether regula-
tion promulgated by agency was authorized by statute): Haig y. Agee,
453 U.S. 280, 101 S.Ct. 2766, 69 | -Ed.2d 640 (1981) (same).
The Captains argue that the regulation prescribing the observer pro-
gram ts invalid because it was not expressly authorized by Congress. The
Captains contend that the observer program is a constitutionally ques-
provide true vessel locations by latitude and longitude, accurate to the nearest
minute, upon request by the observer, No Owner, Master, Operator or crew
Member Of a certified vessel shall impair or in any way interfere with the research or
Observations being carried out
(3) Marine mammals killed during fishing operations which are accessible to
crewmen and requested trom the certificate holder or master by the observer Shall
be brought aboard the vessel and retained for biological Processing, unt'l released
by the observer for return to the ocean, Whole marine mammals designated as
biological specimens by the observer shall be retained in cold storage aboard the
vessel until retrieved by authorized personnel of the National Marine f isheries Ser-
Vice When the vessel returns to port tor unloading
. . . . . .
(g) Penalties and rewards; Any Person OF Vessel subject to the jurisdiction of the
United States shall be subject to the penalties Provided for under the Act for the
conduct of fishing operations in violation of these regulations, The Secretary shall
recommend to the Secretary of the Treasury that an amount equal to one-half of
the fine incurred but not to exceed $2,500 be paid to any person who furnishes in-
formation which leads to a conviction for a violation of these regulations, Any of-
Nicer, employee, or designated agent of the United States or of any State or local
government who furnishes information or renders service in the performance of his
Official duties shall not be eligible for payment under this section
SO C.F.R. § 216.24(f), (g) (1981)
8a
tionable method of enforcing regulatory schemes and that under Greene
v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) authori-
zation for such a rule cannot be found absent an explicit congressional
grant. Greene does not stand for the proposition that Congress must ex-
pressly authorize any action which might be challenged on constitutional
grounds. Rather, the case indicates that Congress will not be presumed
to have authorized agency methods which depart radically from accepted
norms. In the matter before us, we are being asked to decide whether a
particular warrantless search is authorized by Congress and whether that
search violates the fourth amendment. Merely because some warrantless
searches may violate the fourth amendment it does not follow that no
warrantless search may be undertaken pursuant to federal law absent ex-
press congressional authorization. Unlike the types of procedures at
issue In Greene, certain types of warrantless searches have traditionally
been recognized as constitutionally valid. See Henderson v. United
States, 390 F.2d 805 (9th Cir.1967) (border searches); United States v.
Robinson, 414 U.S. 218, 948.Ct. 467, 38 L .Ed.2d 427 (1973) (search in-
cident to arrest); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct.
3092, 49 L.Ed.2d 1000 :1976) (inventory searches); Warden v. Hayden,
387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (exigent cir-
cumstances); Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69
L.Ed.2d 262 (1981) (regulated industry searches). Nothing in Greene
prohibits us from determining whether Congress implicit!y authorized
the observer program. In our discussions below, we reject the conten-
tions that the observer program substantially departs from accepted
methods of enforcing regulatory schemes, and the Greene case is
therefore inapplicable.
To determine whether the regulation was authorized by Congress, we
must analyze the language of the statute. Haig v. Agee, 453 U.S. 280,
289-90, 101 S.Ct. 2766, 2773, 69 L.Ed.2d 640 (1981). Section 1371 of the
MMPA provides in pertinent part:
There shall be a moratorium on the taking and importation of
marine mammals, ... Marine mammals may be taken incidentally in
the course of commercial fishing operations and permits may be issued
therefor under section 1374. . . subject to regulations prescribed by
the Secretary in accordance with section 1373.... The Secretary... is
authorized and directed . . . to determine when, fo what extent, if at
all, and by what means, it is compatible with this chapter to waive the
requirements of this section so as to allow taking, or importing of any
marine mammal, . . . and to adopt suitable regulations, issue permits,
and make determinations . . . permitting and governing such taking
9a
and importing... .
16 U.S.C. § 1371 (1976-1982) (emphasis added).
Section 1373 provides that the Secretary ‘‘shall prescribe such regula-
tions with respect to the taking . . . as he deems necessary and ap-
propriate to insure that such taking will not be to the disadvantage of
those species . . . and will be consistent with the purposes and policies set
forth in section 1361."° 16 U.S.C. § 1373(a4) (1976-1982) (emphasis
added). The Secretary is required to report to Congress every twelve
months on the status of the species and ‘‘to describe those actions taken
and those measures believed necessary, including where appropriate, the
issuance of permits . . . to assure the well being of such marine
mammals."’ 16 U.S.C. § 1373(f).
Section 1374 provides that the Secretary may issue permits and that he
‘‘shall prescribe such procedures as are necessary to carry out this sec-
tion.”’ 16U.S.C. § 1374(d)(1) (emphasis added). In addition, the appli-
cant for any permit ‘‘must demonstrate to the Secretary that the taking
. under such permit will be consistent with the purposes of this
Chapter . . . and the applicable regulations established under section
[13731."° Jd. at § 1374 (emphasis added). The Secretary may issue
general permits for the ‘‘taking of marine mammals’’ together with
regulations to cover the use of such permits which are ‘*[c]onsistent with
the regulations prescribed pursuant to section 1373 . . . and the re-
quirements of section 1371."" 16 U.S.C. § 1374(h).
It is quite true that the MMPA does not expressly confer upon the
Secretary a pov er to impose, as a condition of obtaining a permit, the
stationing of an observer on a vessel. In our view, however, that power is
implicit in the broad rule-making authority expressly delegated to the
Secretary. See Haig v. Agee, 453 U.S. at 291, 101 S.Ct. at 2773-2774
(Secretary of State's power to revoke passports is implicit in broad rule-
making authority conferred upon the Secretary by the Passport Act).
The Supreme Court has admonished that even though a statute does
not explicitly delegate a specific action, ‘‘particularly in light of the
‘broad rule-making authority granted’. . . a consistent administrative
construction of that statute must be followed by the courts ‘‘‘unless
there are compelling indications that it is wrong’’’....’’ Haig v. Agee,
453 U.S. at 291, 101 S.Ct. at 2774. (citations omitted.) Accordingly, the
specific content of the regulation need not be expressly authorized. The
regulation is proper so long as it conforms to the fundamentai objective
10a
of the Act, rationally complements its remedial scheme, Whirlpool Corp.
v. Marshall, 445 U.S. 1, 11, 12, 100 S.Ct. 883, 890, 891, 63 L.Ed.2d 154
(1980), and ‘‘the policy [thereby] announced . . . is ‘sufficiently substan-
tial and consistent’ to compel the conclusion that Congress approved it.”’
Haig, 453 U.S. at 307, 101 S.Ct. at 2782 (quoting Zemel v. Rusk, 381
U.S. 1, 12, 85 S.Ct. 1271, 1279, 14°L.Ed.2d 179 (1965)). Accord Mourn-
ing v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct.
1652, 1660-61, 36 L.Ed.2d 318 (1973); United States v. Southwestern
Cable Co., 392 U.S. 157, 177, 88 S.Ct. 1994, 2005, 20 L.Ed.2d 1001
(1968) (‘‘We may not in the absence of compelling evidence that such was
not Congress’ intention . . . prohibit administrative action imperative for
achievement of an agency’s ultimate purposes.’’). (citation omitteu);
American Trucking Ass'n vy. United States, 344 U.S. 298, 310, 73 S.Ct.
307, 314-15, 97 L.Ed. 337 (1953) (Congress creates regulatory agencies so
that they will bring to their work the expert’s familiarity with industry
conditions that delegating legislatures cannot be expected to possess).
In Mourning, the Supreme Court upheld the power of the Federal
Reserve Board to promulgate regulation ‘*”’’ pursuant to the Board’s
broad rule-making authority under the Truth and Lending Act. 15
U.S.C. § 1604. The Court emphasized that:
Where the empowering provision of a statute states simply that the
agency may ‘‘make... such rules and regulations as may be necessary
to carry out the provisions of this Act,’’. .. a regulation promulgated
thereunder will be sustained so long as it is ‘‘reasonably related to the
purposes of the enabling legislation.’’
411 U.S. at 369, 93 S.Ct. at 1660-1661. (citations omitted).
It appears to us that the regulation at issue here is consistent with the
objective and directives of the MMPA. Requiring the Captains to con-
sent to the placement of observers on their vessels as a condition of ob-
taining a fishing permit is reasonably related to the purposes of the enabl-
ing legislation. The paramount purpose of the Act is ‘‘the protection and
conservation of marine mammals.’ 16 U.S.C. § 1371.° As the D.C.
9. In its Delcaration of Policy, Congress stated:
{T]hat the protection and conservation of marine mammals is therefore necessary
. . Marine mammals have proven themselves to be resources of great interna-
tional significance, esthetic and recreational as well as economic, and it is the sense
of the Congress that they should be protected and encouraged to develop to the
greatest extent feasible commensurate with sound policies of resource management
and that the primary objective of their management should be to maintain the
health and stability of the marine ecosystem. Whenever consistent with this
lla
Circuit has observed, the MMPA is to be administered ‘‘for the benefit
of protected species, rather than for the benefit of commercial exploita-
tion.’’ Committee for Humane Legislation, 540 F.2d at 1148.
Effective implementation of the MMPA would be impossible without
the use of observers for enforcement purposes. Under the MMPA, any
incidental taking of marine mammals must be pursuant to a permit
issued by the Secretary. 16 U.S.C. § 1371. The permits must specify
such factors as the number, kind, age, sex, and location of the mammals
to be taken. 16 U.S.C. § 1374(b). Such limitations are necessary to
assure that the MMPA’s goal of reducing marine mammal mortality to
the minimum practical is met.
The affidavit offered by the government on its motion for summary
judgment discloses that the use of on-board observers is the only prac-
ticable method of enforcing the limitations in MMPA permits. The tuna
vessels subject to the Secretary's regulation operate over thousands of
square miles of open ocean for months at a time. No independent
surveillance program could hope to be able to verify whether or not a
particular vessel complied with its trip quota. Even if such a technically
feasible surveillance program were available, its costs would be pro-
hibitive. The observer program is thus ‘‘necessary and appropriate to in-
sure that such taking will not be to the disadvantage of those species...
and will be consistent with the purposes and policies set forth in the
[MMPA]."’ 16 U.S.C. § 1373(a). Because the observer program is
necessary for the enforcement of the MMPA, it is within the authority
granted to the Secretary by Congress. See Southwestern Cable, 392 U.S.
157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (authority normally presumed for
regulations necessary to enforce its statutory mandate); cf. Mourning,
411 U.S. at 371-72, 93 S.Ct. at 1662 (**That some other remedial provi-
sion might Ȣ preferable is irrelevant. We have consistently held that
where reasonable minds may differ as to which of several remedial
measures should be chosen, courts should defer to the informed ex-
perience and judgment of the agency to whom Congress delegated ap-
propriate authority."'). In addition, the Secretary could not fulfill his
duty under the MMPA to make annual reports to Congress if the
observer program were discontinued. See 16 U.S.C. § 1373(f); cf. FCC
v. Schreiber, 381 U.S. at 294, 85 S.Ct. at 1469-1470 (rule promulgated by
primary objective, it should be the goal to obtain an optimum sustainable popula-
tion keeping in mind the optimum carrying capacity of the habitat.
16 U.S.C. § 1361 (1976-1982).
ac tea
12a
FCC necessary to execute its duty to make annual reports to Congress).
In upholding the regulation, we are impressed by the fact that Con-
gress, through oversight hearings, was made aware o! the continued ex-
istence of the observer program. Congress was informed through hear-
ings conducted from 1976 to 1981 that information gathered by observers
might be used in penalty proceedings.'® In 1981, Congress amended the
MMPA and did not disturb the Secretary's broad-rule making authority
in spite of this regulation.'' See Haig v. Agee, 453 U.S. at 301 & n. $0,
101 S.Ct. at 2779 & N. 50 (quoting Zemel v. Rusk, 381 U.S. at 21, 8&5
S.Ct. at 1283 (fact that Congress left rule-making authority untouched
while amending Act gives rise to presumption that Congress has adopted
10. See, e.g., Hearings on Tuna-Porpoise Amendments Before the Subcomm. on
Fisheries and Wildlife Conservation and the Environment of the House Comm. on
Merchant Marine Fisheries, 94th Cong., 2d Sess., Ser. 29 (1976) at 352-53 (govern-
ment compliance plan to court's order in Commiuttee for Hiumane Legislation, Inc. y.
Richardson, 414 F.Supp. 297 (D.D.c.) aff'd, §40 F.2d 1141 (D.C.Cir.1976)); Hearings
on Oversight of the Tuna-Porpoise Problem Before the Subcomm. on Fisheries and
Wildlife Conservation and the Environment of the House Comm. on Merchant
Marine and Fisheries, 94th Cong., 2d Sess., Ser. 45 (1976) at 212 (remarks of Dr.
White); id. at 223-24, 262 (remarks of Dr. Fox); Hearings on Reducing Porpoise Mor-
tality Before the House Comm. on Merchant Marine and Fisheries, 98th Cong., Ist
Sess. 3 (1977) at 209-10, 213, 216-17 (remarks of Dr. White); Hearings of Tuna-
Porpoise Oversight Before the House Comm. on Merchant Marine and Fisheries, at
463 (remarks of Mr. Bonker); id. at 465-66 (remarks of Mr. McCloskey); Hearings on
Oversight into the Marine Mammal Protection Act Before the Senate Comm. on
Commerce, Science, and Transportation, 958th Cong., Ist Sess., Ser. 12 at 17 (1977)
(remarks of Dr. White); Hearings on Marine Mammal Protection Act Authorization
Before Subcomm. on Fisheries and Wildlife Conservation and the Environment of the
House Comm. on Merchant Marine and Fisheries, 97th Cong., Ist Sess., Ser. 8 at
81-82 (1981) (remarks of Mr. Breaux and Mr. Burney); id. at 83-86 (remarks of Mr.
Hertel and Mr. Burney).
See Pub.L. No. 97-§8, 95 Stat. 979, codified at 16 U.S.C. § 1371(a)(2) (1982).
As one official explained, the observers started gathering compliance data in 1976.
Hearings on Reducing Porpoise Mortality and Tuna-Porpoise Oversight Before the
Subcomm. on Fisheries and Wildlife Conservation and teh Environment of the
Comm. on Merchant Marine and Fisheries, 98th Cong., Ist Sess. 465-66 (1977). The
government compliance plan submitted in accordance with the order in Committee for
Humane Legislation, Inc. v. Richardson, $40 F.2d 1141 (D.C.Cir.1976), was also the
subject of 1977 oversight hearings, e.g., Hearings on Marine Mammal Oversight
Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of
the Comm. on Merchant Marine and Fisheries, 95th Cong., 1st Sess. 20-21 (1977) (use
of observers to collect information on compliance is more effective than aircraft
surveillance).
l3a
the censtruction)). Thus, as in Haig v. Agee, ‘‘the inference of congres-
sional approval ‘is supported by more than mere congressional
inaction.’*’ 453 U.S. at 301, 101 S.Ct. at 2779. (quoting Zemel v. Rusk,
381 U.S. 1, 11-12, 85 S.Ct. 1271, 1283, 14 L.Ed.2d 179 (1965)); ef.
Fredericks v. Kreps, $78 F.2d 555, 563 (Sth Cir.1978) (en banc) (congres-
sional oversight committee’s awareness of regulations before they were
put into effect reinforces determination that regulation is consistent with
Congress’ intent). See also Andrus v. Allard, 444 U.S. 51, 57, 100 S.Ct.
318, 322, 62 L.Ed.2d 210 (1979) (Court upheld regulation not‘ug that
Congress twice reviewed and amended the Act without rejecting the
Department’s view that it was authorized under the Eagle Protection
Act, 16 U.S.C. § 688, to bar sale of preexisting artifacts); NLRB v. Bell
Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757. 1761-62, 40
L.Ed.2d 134 (1974) (great weight may be accorded a long standing inter-
pretation of a statute by an agency charged with its administration
especially where Congress has reenacted the statute without pertinent
change; failure to repeal or revise the agency’s interpretation is per-
Suasive evidence that Congress intended the interpretation)
[2] The Captains advance two arguments against this construction.
The first is that since Congress explicitly authorized funds for an
observer program for only two years, 16 U.S.C. § 1381, the Secretary’s
regulation adopting an observer program beyond this two-year period ex-
ceeds statutory authority. As noted earlier, the legislative history sug-
gests, and the statute itself reflects, that this program was adopted to
enable the Secretary to observe the industry’s utilization of advanced
gear which purportedly would protect marine mammals.'? Moreover,
the program was a condition to the industry’s incidental taking of por-
poise during the exemption from the moratorium. 16 U.S.C. §
1371(a)(2) (1976), amended by 16 U.S.C. § 1371 (1982). Thereafter, the
Secretary was authorized to waive the moratorium pursuant to regula-
tions he deemed necessary and appropriate. /d.; 16 U.S.C. § 1373. Cer-
tainly, if Congress deemed the observer program a necessary condition to
allowing the industry an exemption from the moratorium to ensure the
protection of marine mammals, it is not unreasonable for the Secretary,
in waiving the moratorium, to so condition the issuance of a permit for
commercial fishing. The fact that funding for the statutory program was
authorized by Congress only during the industry’s two-year exemption
does not indicate to us that Congress intended to ban the use of observer
programs.
12. See note 6 supra.
|4a
Further, the expiration of the statutory observer program and the ter-
mination of the industry's exemption from the moratorium on takings
imposed by the MMPA coincided with the commencement of the rule-
making authority delegated to the Secretary. 16 U.S.C. § 1371(a)(2)
(1976), amended by 16 U.S.C. § 1371(a)(2) (1982). This suggests that
Congress meant what the MMPA clearly states: The Secretary would
have the broad authority to ‘‘determine when, to what extent, if av all,
and by what means, it is compatable with . . . [the MMPA] to allow tak-
ing... Of any marine mammal, . . . and to adopt suitable regulations,
issue perinits, and make determinations . . . permiiting and governing
such taking.’’ 16 U.S.C. § 1371(a)(3)(A) (1976-1982) (emphasis added).
We believe that section 1381 of the MMPA, which expressly included
an observer program, provided the Secretary with a model of Congress’
view as to whai was necessary to carry out the purposes of the statute.
{3] The Captains’ second argument is that since the House approved a
bill in May of 1977'' that explicitly authorized the use of observer data
for enforcement purposes, but the Senate did not act upon it, congres-
sional disapproval must be inferred. The House Oversight Committee,
however, was well aware of the continued existence of the observer pro-
gram and the fact that the Senate might not act on the bill.'* The Com-
mittee was informed that existing funds were not adequate to staff all
such vessels. Committee members expressed concern that the bill, which
would have authorized additional funding for the observer program to
staff all vessels with a capacity of four hundred or more tons,'*‘ might not
be acted upon by Congress. This concern stemmed from the discrepancy
in numbers of porpoise mortalities reported by observed and unobserved
vessels and the belief that the observer program was the only means of
13. H.R. 6970 would have amended 16 U.S.C. § 1381 to provide that an observer pro-
gram for 400 ton capacity vessels should be established and maintained. The
observer's responsibilities would have included determining compliance with MMPA
regulations.
14. Hearings on Reducing Porpoise Mortality and Tuna-Porpoise Oversight Before
Subcomm. on Fisheries and Wildlife Conservation and the Environment of the
Comm. on Merchant Marine and Fisheries, 98th Cong., Ist Sess., 455-56, 463, 465-66
(1977) (remarks of Dr. Fox and Mr. Frank).
18. Jd. at 4631 (colloquy between Congressman Bonker and Mr. Frank, the NOAA
administrator).
15a
obtaining accurate information.'* We have found nothing in the 1977 or
1978 hearings of the Oversight Committee that suggests that the Commit-
tee disapproved of the collection of compliance data. When Congress
amended the MMPA in 1981, it did nothing to alter the [sic] Secretary's
power to continue the existence of the observer program. Thus, we con-
clude that the mere failure of the bill to be enacted does not demonstrate
congressional disapproval of the observer program. Cf. American
Trucking Association v. U.S., 344 U.S. 298, 309 n. 10, 73 S.Ct. 307, 314
n. 10, 97 L.Ed. 337 (1952) (fact that Act as originally drafted defined
commerce to include leasing but lease terminology was stricken was of no
consequence to Interstate Commerce Commission’s implied power to
regulate leasing practices).
The Captains also contend that the observer program exceeds the
Secretary’s rule-making authority under the MMPA because section 1377
narrowly defines the acceptable enforcement procedures. The observer
program is said to be in direct conflict with section 1377, which allows
warrantless searches if there exists reasonable cause to believe a vessel is
in violation of the MMPA. We disagree.
Section 1377 provides that ‘‘the Secretary shall enforce the provisions”’
of the MMPA, 16 U.S.C. § 1377(a). The statute provides further that its
provisions concerning enforcement by arrest, search and seizure, are ‘‘in
addition to any other authority conferred by law[.]’’ 16 U.S.C. §
1377(d). Thus, section 1377 does not limit enforcement procedures to
those expressly authorized in that section. The regulation prescribing the
observer program comes within the meaning of ‘‘other authority confer-
red by law”’ as used in section 1377.
CONSTITUTIONALITY OF THE REGULATION
The Captains contend that the regulation authorizes a warrantless
search in violation of the fourth amendment.
[4] Whether the observer program constitutes a search is a question
which is not free from doubt. This circuit has held that not every board-
ing of a vessel constitutes a search. United States v. Olander, 584 F.2d
876, 888 (9th Cir.1978) (boarding to serve process is not a search),
vacated on other grounds sub nom. Harrington y. United States, 443
16. /d.
16a
U.S. 914, 99 S.Ct. 3104, 61 L.Ed.2d 878 (1979). A search within the
meaning of the fourth amendment involves governmental prying into
hidden places for that which is concealed by persons exhibiting a
‘‘legitimate expectation of privacy.’’ See Rakas v. Illinois, 439 U.S. 128,
143, 99 S.Ct. 421, 430, §8 L.Ed.2d 387 (1978). The regulation does not
authorize an inspection of private papers, nor a search of the person, or
the personal effects of the Captains or their crews. Instead, the observers
must confine their observations to the fishing operations of the vessel,
which occur on the open sea or on deck. Thus, the information they may
gather is restricted to evidence which is in plain view. *‘What a person
knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection.’* Aatz v. United States, 389
U.S. 347 at 351, 88 S.Ct. $07 at S11, 19 L.Ed.2d $76 (1967). See United
States v. Whitmire, 595 F.2d 1303, 1312 (Sth Cir.1979), (high levels of
privacy might be accorded to crews living quarters on tanker that travels
for months, but no crew member has legitimate claim of privacy on open
deck of a fishing smack or in the hold of a cargo vessel available for
hire), cert. denied, 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980).
It can be argued with equal force, however, that the observer’s cons-
tant surveillance of the activities of the Captains and their crews, tor a
prolonged period of time, constitutes an intrusion into liberty and
privacy interests, protected by the fourth amendment, by exposing
‘‘what [a person] seeks to preserve as private, even in an area accessible
to the public."’ Aufz, 389 U.S. at 351, 88 S.Ct. at S11.
[5] We need not pause to resolve this nice question. Even if we assume
that the regulation authorizes a warrantless search of the operations of a
fishing vessel, it is our view that the regulation requiring the presence of
observers on purse seiners does not violate the fourth amendment.
The fourth amendment prohibits unreasonable searches and seizures.
Warrantless searches may be reasonable under certain circumstances.
See, e.g., Weeks v. United States, 232 U.S. 383, 392, 34. S.Ct. 341, 344,
§8 L.Ed. 6§2 (1914) (search incident to a lawful arrest); Carroll v. United
States, 267 U.S. 132, 146, 48 S.Ct. 280, 282-83, 69 L.Ed. 543 (1925)
(search of vehicles based on probable cause that contraband ts being car-
ried); South Dakota vy. Opperman, 428 U.S. 364, 367-76, 96 S.Ct. 3092,
3096-3101, 49 L.Ed.2d 1000 (1976) (inventory search of impounded
vehicles without a showing of probable cause); //linois v. Lakavette, — _
U.S. ; . 103 S.Ct. 2605, 2611, 77 L.Ed.2d 65 (1983) (booking
search of a man’s purse-type shoulder bag); United States v. Villamonte-
17a
Marquez, U.S. ___, ___., 103 S.Ct. 2573, 2582, 77 L.Ed.2d 22
(1983) (boarding of vessels without articulable suspicion). In Carroll v.
United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924), the
Supreme Court commented: ‘‘Under the common law and agreeably to
the Constitution [a] search may in many cases be legally made without a
warrant. The Constitution does not forbid search, as some parties con-
tend, but it does forbid unreasonable search.’’ 267 U.S. at 146, 45 S.Ct.
at 282.
The Supreme Court has recognized that warrantless searches in closely
regulated industries can be reasonable. The Court has held that war-
rantless inspections are reasonable if they are reasonably necessary to
further important federal interests and the federal regulatory presence is
sufficiently comprehensive and predictable that ‘‘the assurance of
regularity provided by a warrant is rendered unnecessary.’’ Donovan y.
Dewey, 452 U.S. 594, 599-602, 101 S.Ct. 2534, 2538-40, 69 L.Ed.2d 262
(1981).'°. The Court has applied the exception where the business
premises searched are part of an industry ‘‘long subject to close supervi-
sion and inspection.’’ Colonnade Catering Corp. v. United States, 397
U.S. 72, 76-77, 90 S.Ct. 774, 776-77, 25 L.Ed.2d 60 (1970); see also
United States v. Raub, 637 F.2d 1205, 1208 (9th Cir.1980) (‘‘One of the
recognized exceptions to the warrant requirement is for administrative
searches of enterprises that traditionally have been closely regulated.’’).
In Marshall v. Barlow’s, Inc. , 436 U.S. 307, 313, 98 S.Ct. 1816, 1820-21,
$6 L.Ed.2d 305 (1978), the Court observed that certain industries have
had such a history of close governmental supervision that no reasonable
proprietor entering into them could have a justifiable expectation of
privacy. In United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32
L.Fd.2d 87 (1972), the Court extended the pervasively regulated industry
exception to industries without a long tradition of regulation where fre-
quent unannounced inspections are essential to further an important
governmental interest.
Where the regulation involves a comprehensive and predictable
governmental presence, the owner ‘“‘Is not left to wonder about the
17. As noted earlier, we have concluded that the observer program furthers substantial
federal interests in protecting marine mammals. Congress was aware that an impor
tant national asset was being depleted by the commercial tuna fishing industry. Con
gress also determined that the Secretary needed broad rule-making power to adopt
measures consistent with the MMPA to remedy the problem The Secretary
reasonably concluded that the observer program was necessary to further the
regulatory scheme presented under the MMPA
18a
purposes of the inspector or the limits of his task.’’ 406 U.S. at 316, 92
S.Ct. at 1596. The Court has also noted that where the industry is closely
regulated, the owner cannot help but be aware that the government will
conduct periodic inspections for specific purposes. Donovan v. Dewey,
452 U.S. 594, 600, 101 S.Ct. 2534, 2538-39, 69 L.Ed.2d 262 (1981). The
reasonableness of a search in a closely regulated industry does not de-
pend on the existence of probable cause but rather on the ‘‘pervasiveness
and regularity of the federal regulations.’’ 452 U.S. at 606, 101 S.Ct. at
2542. When a person chooses to engage in a closely regulated industry
and to accept a license which is conditioned upon such warrantless intru-
sion and inspection, he does so with full knowledge of the restrictions on
his privacy. He is also fee not to submit to such regulation and war-
rantless inspection by declining to seek a federal permit. Biswe//, 406
U.S. at 315-16, 92 S.Ct. at 1596.
The Captains argue that the closely regulated industry exception does
not apply to a warrantless administrative search unless it is expressly
authorized by Congress. This argument was presented and rejected by
the court in United States v. Rucinski, 658 F.2d 741 (10th Cir.1981), cert.
denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 649 (1982). It is quite
true that in each of the cases cited above where the Supreme Court deter-
mined that a warrantless search of a closely regulated industry was
reasonable under tne fourth amendment, the entry was expressly
authorized by statute. The Captains assume that since the Supreme
Court has held that a warrantless search of a closely regulated industry is
reasonable when expressly authorized by Congress, the search of such a
business violates the fourth amendment if it is conducted pursuant to a
regulation implied/y authorized by Congress. No authority is cited for
this novel constitutional proposition. The law is to the contrary. Con-
gress cannot authorize conduct which violates the fourth amendment.
The proper inquiry when a warrantless search is challenged is whether it
is authorized by the fourth amendment—not by an act of Congress.
In Raub, this court noted that “‘[clommercial fishing has a long history
of being a closely regulated industry “* 637 F.2d at 1208 (footnote omit-
ted). Regulation of the fishing industry began in 1793. /d. at 1209 n. §,
Since 1972, the tuna industry has been closely regulated by Congress
because its fishing operations threatened the extinction of the porpoise.
Congress’ interest in the protection of marine mammals was made
known to all commercial fishermen in 1972 when Congress expressly
authorized the placing of observers on purse seiners to protect the por-
poise under the MMPA.. As discussed above, in the MMPA, Congress
19a
authorized the Secretary to prescribe regulations and to issue a permit
restricting the taking of marine mammals. Congress also authorized the
Secretary to limit the issuance of permits to those persons who can
demonstrate that any taking of marine mammals will be consistent with
the MMPA, 16 U.S.C. § 1373. Thus, commercial fishermen have been
made aware since 1972 that to take porpoise they must have a permit
which is subject to conditions that will insure that marine mammals are
given the protection required by Congress. The statutory observer pro-
gram had been one such condition. Since 1974 commercial fishermen
have also been aware of the regulation which prescribes the observer pro-
gram. Any tuna boat Captain who does not wish to expose himself to the
observation of his open deck activities is free not to submit to such an in-
trusion by refraining from seeking a permit. See Biswell, 406 U.S. at
315-16, 92 S.Ct. at 1596. See also Wyman v. James, 400 U.S. 309, 91
S.Ct. 381, 27 L.Ed.2d 408 (1971) (a welfare recipient may avoid an entry
into his home by refusing to accept public assistance).
In determining whether warrantless searches in a closely regulated in-
dustry are reasonable we must decide whether the regulatory scheme ‘‘in
terms of the certainty and regularity of its application, provides a con-
stitutionally adequate substitute for a warrant.’’ Dewey, 456 U.S. at
603, 101 S.Ct. at 2540. It is evident to us that the observer program
regulation provides an adequate substitute for a warrant for several
reasons.
First, the MMPA, the regulation, and the National Marine Fisheries
Services’ (NMFS) Manual establish a predictable and guided federal
presence and limit the scope of the data collection. The MMPA dele-
gates to the Secretary the authority to waive the moratorium on porpoise
takings only when he can determine that such takings will not disadvan-
tage protected species. The MMPA specifically sets forth permissible
restrictions on the takings of porpoises and authorizes the Secretary to
impose additional ones. The Act also requires publication of proposed
regulations, and clearly defines its objectives and purposes.
Under the observer program, vessel owners are sent advance calendars
of scheduled observer trips. This notification includes a statement of the
significant regulations promulgated by the Secretary. The regulation, 50
C.F.R. § 216.24(f), limits the scope of observer activities to data collec-
tion. The National Marine Fishery Service Field Manual further defines
the data collection activities of individual observers. The 1979 Manual
informs observers that they are not enforcement agents and they are not
20a
‘to record extraneous comments, editorials, or personal opinions . . . or
evaluate or interpret data."’ Observers are instructed simply to record
the data called for in the form. The Manual, which is available to the in-
dustry, contains sections on the observer’s responsibilities, instructions
to the observers, and standardized forms to record information. The
1981 Manual additionally establishes a predeparture conference between
the owner, master, observer, and an agency official to ensure a common
understanding of the scope of observers’ activities.
Second, the regulation requires that tuna vessel owners be given ad-
vance notice of the stationing of an observer on their vessel. Thus, the
surprise element of many warrantless inspections is lacking here. See,
e.z., Delaware v. Prouse, 440 U.S. 648, 657, 99 S.Ct. 1391, 1398, 59
L.Ed.2d 660 (1979). This advance notice also provides the Captains with
an opportunity to seek judicial review of a particular scheduled observer
trip. Cf. Dewey, 482 U.S. at 604-05, 101 S.Ct. at 2541 (opportunity for
judicial review is factor important in reasonableness determination).
They are also free to request a court order accommodating any privacy
interests that may need protection. We conclude that the regulation as
limited by the field manual provides a constitutionally adequate
substitute for a warrant.
Use of observers advances the legitimate government interest of mean-
ingful protection of the porpoise population, while the safeguards built
into the observer program insure that there will be no significant intru-
sion on the Captains’ fourth amendment interests. Cf. Delaware vy.
Prouse, 440 U.S. at 654, 99 S.Ct. at 1396 (constitutionality of a law en-
forcement procedure is basically tested by balancing its intrusion on
fourth amendment interests against its promotion of legitimate govern-
ment interests).
The Captains ask us to invalidate the observer program on the ground
that a less restrictive alternative for obtaining the information exists. The
government's affidavit, however, demonstrates that the suggested tech-
niques—aerial surveillance and the like—are prohibitive in terms of cost
and are ineffective in terms of data collection necessary for the Secretary
to waive the moratorium on takings of porpoise and to issue permits. Cf.
Wyman, 400 U.S. at 322, 91 S.Ct. at 388 (although secondary sources
might be helpful, they would not always assure identification of informa-
tion required for receipt of benefits).
2la
In WVillamonte-Marquez, the Court noted that the nature of water
borne commerce in waters providing ready access to the open sea is suffi-
ciently different from the nature of vehicular traffic on highways so as to
make possible alternatives to the boarding of a vessel less likely to ac-
complish essential governmental procedures. _ U.S. at ___, 103
S.Ct. at 2581.
CONCLUSION
We hold that the requirement that observers be permitted to board
purse seiners on a scheduled basis as a condition of obtaining a permit to
take porpoise is reasonable under the fourth amendment. The regulation
and the field manual do not authorize the observers to conduct searches
of the persons, personal effects, or living quarters of the Captains and
their crews. Such a search would have to be justified independently
under the fourth amendment.
The judgment in Balelo is reversed and remanded for further pro-
ceedings consistent with this opinion. The judgment in Gladiator is af-
firmed.
PREGERSON, Circuit Judge, concurring:
I concur in the majority's opinion but write separately to say that the
observer program does not constitute a ‘‘search’’ within the meaning of
the fourth amendment.
Fourth amendment protection operates when two conditions are met.
First, a person must have exhibited an expectation of privacy in the place
where the Government has allegedly intruded. Second, this expectation
must be one that a free society is prepared to recognize as reasonable.
Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19
L.Ed.2d 576 (1967) (Harlan, J., concurring).
The tuna boat captains have failed to meet either condition. They con-
duct fishing operations at sea on decks covered only by the sky and open
to view by other crew members, nearby vessels, and overflying aircraft.
Moreover, our society is not prepared to recognize an expectation of
privacy on open tuna boat decks, which are really no different from work
areas in any industry the Government regulates to safeguard the public
22a
health and welfare. Federal inspectors, without impinging on any
reasonable expectation of privacy, routinely monitor work areas in the
coal mining, Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69
L.Ed.2d 262 (1981) (Federal Mine Safety and Health Act of 1977),
firearms, United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1893, 32
L.Ed.2d 87 (1972) (Gun Control Act of 1968), and salmon fishing,
United States v. Raub, 637 F.2d 1208 (9th Cir.1980) (Sockeye Salmon
Fishine Act of 1947), industries, to name just a few.
In the final analysis, | think the question whether a governmental in-
trusion into a private area constitutes a reasonable search under the
fourth amendment depends on the kind and degree of intrusion that a
free society is willing to tolerate. United States v. Solis, 393 F.Supp. 325,
328 (C.D.Cal.1975) (Pregerson, J.), aff'd in relevant part, $36 F.2d 880
(9th Cir.1976). With few exceptions, our society does not tolerate war-
rantless intrusions into private dwellings and offices. E.g., Camara vy.
Municipal Court, 387 U.S. $23, $28-29, 87 S.Ct. 1727, 1730-31, 18
L.Ed.2d 930 (1967). But the presence on open decks of government
scientists monitoring commercial fishing operations to save the porpoise
from extinction is the kind and degree of intrusion that our society
should tolerate.
NELSON, Circuit Judge, concurring:
If hard cases make bad law, | fear the result of cases such as this, I
write specially to reveal the extraordinary difficulties | tind i this case,
and to explain its limited applicability.
First, | would make explicit that the search involved here is over-
whelmingly intrusive. Stationing an observer on a small boat for months
at a time is both a search and a massive invasion of privacy. Thus, when
I balance the need for government regulation with the degree of intrusion
in this case, I find both sides of the scale weighted heavily. I would not
simply ‘‘assume arguendo"’ that this is a search, but would call it by its
name and treat it accordingly.
Warrantless searches are presumptively unreasonable. See, e.g.,
Camara v. Municipal Court, 387 U.S. §23, 528-29, 87 S.Ct. 1727,
1730-31, 18 L.Ed.2d 930 (1967), The pervasively regulated industry ex-
ception is narrowly crafted, and should be limited as much as possible.
See See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 18 L.Ed.2d
943 (1967). It is only because | view a commercial fishing vessel to be a
23a
workplace (unlike, say, a house boat or a recreational boat) that | am
willing to apply the exception here. Even then, however, | am wary of
permitting warrantless search.s of residences that double as workplaces.
But for the unique inaccessibility of ships at sea, | would not permit a
warrantless search. Sec ‘ nited States v. Villamonte-Marquez, U.S.
. 103 S.Ct. 2873, 7° L.d.2d 22 (1983).
Second, | write to emphasize the magnitude of the governmental in-
terest involved in this case. If the world loses genetic diversity, it has tru-
ly suffered irreparable harm. Marine mammals have long been threaten-
ed by the onslaught of technology; if we must take drastic steps to avoid
further encroachment, so be it.
Last, | am struck by the precautions the government has taken to limit
the intrusiveness of the observer program. The regulatory scheme is
detailed; the inspectors can report about porpoises and nothing more;
absolutely no alternative method of enforcemeni exists. Under these cir-
cumstances, | hesitantly concur. Were the situation less compelling in
any respect, | would not.
TANG, Circuit Judge, with whom FERGUSON, Circuit Judge, joins,
and with whom CANBY, Circuit Judge, joins in Part II, dissenting:
I respecttully dissent. In my view the challenged regulation is not
authorized by Congress and the provision for warrantless searches of-
fends the Constitution,
The regulation, $0 C.F.R. § 216.24(f), establishes an indefinite policy
of stationing federal observers aboard tuna boats for enforcement as well
as research purposes. Because Congress expressly restricted the use of
observers to the two-year period following passage of the Act and limited
the function of such officials to research and scientific observation, this
regulation goes far beyond the design of the statute it purports to imple-
ment.
Regulations promulgated pursuant to an enabling statute will be
upheld if they are reasonably related to the purposes of the enabling
legislation, Mourning v. Family Publication Service, Inc., 411 U.S. 356,
369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973), but such regulations
24a
will not be sustained when they are contrary to congressional design.
‘The rulemaking power granted to an administrative agency charged
with the administration of a federal statute is not the power to make law.
Rather, it is ‘the power to adopt regulations to carry into effect the will
of Congress as expressed by the statute.’"’ Ernst & Ernst v. Hochfelder,
425 U.S. 185, 213-14, 96 S.Ct. 1375, 1391, 47 L.Ed.2d 668 (1976)
(quoting Manhattan General Equipment co. v. Commissioner, 297 U.S.
129, 134, 6 S.Ct. 397, 400, 80 L.Ed. 528 (1936)). Thus, ‘tour primary
task when testing the statutory authority of a challenged regulation must
always be to determine the intent of Congress."’ State of California v.
Block, 663 F.2d 855, 860 (9th Cir. 1981).
In this case, the language of the statute and its legislative history both
indicate that Congress intended to restrict the use of on-board observers
to the two-vear period following passage of the Act.
16 U.S.C. § 1381 provided:
[a}fter timely notice and during the period of research provided in this
section, duly authorized agents of the Secretary are hereby empowered
to board and to accompany any commerci..! fishing vessel... on a
regular fishing trip for the purpose of conducting research or observ-
ing Operations in regard to the development of improved fishing
methods and gear as authorized by this section. 16 U.S.C. § 1381(d)
(1976). (emphasis added)
The period of research referred to in § 1381(d) covered ‘the full
twenty-four calendar month period following October 21, 1972," after
which the results of such research were to be reported to Congress. 16
U.S.C, § 1381(a). Funding for the observer program was also limited to
the two-year period provided in the statute. The statutory objective was
to use the observers as part of ‘‘a program of research and development
for the purpose of devising improved fishing methods and gear so as to
reduce to the maximum extent practicable the incidental taking of marine
mammals in connection with commercial fishing.”’ 16 U.S.C. § 1381{a).
Congress clearly expressed its intent to use the observers only as part of a
short term research program. The majority, however, sanctions the
agency's administrative decision to transform one part of a limited
research program into an ongoing regulatory policy of indefinite dura-
tion,
25a
The legislative history of the observer program underscores the two-
year limitation as part of the Act's congressional design. Section 1381 of
the Act originated as a Senate amendment. The Senate report indicates
that Congress intended the observer research and development program
to terminate two years after passage of the Act. The majority is simply
incorrect when it suggests that the observer program was merely a model
after which a regulatory observer policy could be patterned. ‘‘The com-
mittee has authorized a $2 million, 2-year program to devise new
methods of netting and tuna boat operating procedures which will reduce
the killing of marine mammals. The committee has provided a 2-year
period because it is believed that science can come up with new systems
within that time.’’ S.Rep. No. 863, 92nd Cong., 2d Sess. 9-10 (1972). At
the end of the two-year period, the best available fishing methods, if
feasible, were to be mandated on commercial fishing vessels, S.Rep.,
supra at 21. The research program, including its $2 million appropria-
tion and federal observer component, was restricted to a two-year period
in clear and explicit terms. Neither the statutory language nor the
legislative history of the observer program hint that the agency retained
any discretion to extend the use of on-board observers beyond the ex-
plicit two-year period.
In addition to its unauthorized extension of the operative period for
the observer program, the regulation also expands the function of the
government observers beyond the research component contemplated by
Congress by enlisting them as inspection and enforcement officials.
When Congress created the two-year observer program, it expressly
stated that the observer presence was a research tool aimed at ‘‘the
development of improved fishing methods and gear as authorized by this
section.’’ 16 U.S.C. § 1381(d). The regulation, however, extends the
duration of the observer presence indefinitely and transforms the
observers from mere researchers into enforcement officers who collect
information for use against the fishermen in civil and criminal actions.
To label them now merely ‘‘observers”’ is an understatement. They are
now federal inspectors who maintain constant surveillance to ensure that
fishermen comply with federal law. The majority is correct to say this is
probably the most efficient way to guarantee that the fishermen fish by
the rules, but it is not what Congress provided. The observer program
was not developed in a spirit of expediency. If Congress contemplated
the use of live-in observers for enforcement purposes, it could have ex-
pressly provided for such a function in the observer statute or at least
granted the Secretary the discretion to create additional functions for the
observers.
26a
Instead, Congress specifically addressed the methods of enforcing the
statutory scheme in § 1377 of the Act, which allows warrantless searches
of vessels only if there is ‘‘reasonable cause to believe’ that a vessel or
crew member is violating the Act or its regulations. 16 U.S.C. § 1377(d).'
Hence, the very structure of the Act itself—indeed its own language—
indicates that Congress did not envision warrantless searches by on-
board observers as an enforcement mechanism. The majority, however,
seizes on that part of the language of § 1377 which suggests that the en-
forcement measures it authorizes are ‘‘in addition to any other authority
conferred by law.’ 16 U.S.C. § 1377(d). The majority asserts that this
language indicates that Congress vested the Secretary with the power to
create additional enforcement measures even in contravention of the ex-
press statutory limitations of § 1377. Under the majority's reading of the
statute, the Secretary, apparently without limitation, may abrogate the
explicit search and seizure restrictions of § 1377 and effectively render
most of that section a nullity. Beyond the fact that neither the plain
language of the statute nor its legislative history substantiates such an in-
terpretation, the majority's reading defies basic principles of statutory
construction because ‘‘acceptance of that meaning would lead to absurd
results . . . or would thwart the obvious purpose of the statute.’’ Trans
Alaska Pipeline Rate Cases, 436 U.S. 631, 643, 98 S.Ct. 2053, 2061, 56
L.Ed.2d $91 (1978) (quoting Commissioner v. Brown, 380 U.S. 563, 571,
85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965)). This self-emasculating inter-
1. Execution of process; arrest; search; seizure
(d) Any person authorized by the Secretary to enforce this subchapter may execute
any warrant or process issued by any officer or court of competent jurisdiction for the
enforcement of this subchapter. Such person so authorized may, in addition to any
other authority conferred by law —
(1) with or without warrant or other process, arrest any person committing in his
presence or view a violation of ths subchapter or the regulations issued thereunder;
(2) with a warrant or other process, or without a warrant if he has reasonable cause
to believe that a vessel or other conveyance subject to the jurisdiction of the United
States or any person on board is in violation of any provision of this subchapter or
the regulations issued thereunder, search such vessel or conveyance and arrest such
person;
(3) seize the cargo of any vessel or other conveyance subject to the jurisdiction of
the United States used or employed contrary to the provision of this subchapter or
the regulations issued hereunder or which reasonably appears to have been so used
or employed; and
(4) seize, whenever and wherever found, all marine mammals and marine mammal
products taken or retained in violation of this subchapter or the regulations issued
thereunder and shall dispose of them in accordance with regulations prescribed by
the Secretary.
16 U.S.C. 1377(d).
27a
pretation of § 1377 is contrary to the presumption against re ding a
statute in a manner which renders it ineffective. F.7.C. v. Manager,
Retail Credit Co., 515 F.2d 988, 995 (D.C.Cir.1975). The majority's
reading of § 1377 exaggerates the language of a single phrase to eviscerate
the statute’s internal enforcement scheme, a scheme that was designed to
enforce the Act without disregarding the privacy concerns of those who
would be subject to it.
The majority suggests that subsequent congressional inaction infers
approval of the way observers are used under the regulation. Such inac-
tion is not a helpful indicator of congressional intent when the statutory
language itself suggests a contrary interpretation. §.E.C. v. Sloan, 436
U.S. 103, 117, 98 S.Ct. 1702, 1711, 56 L.Ed.2d 148 (1978). When Con-
gress has squarely faced the propriety of a regulatory measure, congres-
sional non-action may be evidence of congressional approval. Bob Jones
University v. United States, U.S. , 105 S.Ct. 2017, 2033, 76
L.Ed.2d 157 (1983). Absent such direct consideration, however, ‘*[nJon-
action by Congress is not often a useful guide. . .”’ Bob Jones Universi-
ty, supra, at 2033.
The majority attempts to bolster its finding of congressional approval
by noting that Congress has amended the Act without disturbing the
Secretary’s use of on-board observers. This argument is unpersuasive
because the on-board observer program was not specifically addressed in
subsequent legislative action. Indeed, the Supreme Court recently re-
jected such an argument in Aaron vy. S.E.C., 446 U.S. 680, 100 S.Ct.
1945, 64 L.Ed.2d 611 (1980). There, the Court refused to adopt an agen-
cy’s statutory interpretation which was premised on congressional failure
to disturb that interpretation in subsequent legislative amendments to the
authorizing act. ‘‘[S]ince the legislative consideration of those statutes
was addressed principally to matters other than that at issue here, it is our
view that the failure of Congress to overturn the Commission's inter-
pretation falls far short of providing a basis to support a construction of
§ 10(b) so clearly at odds with its plain meaning and legislative history.”’
Id. at 694, n. 11, 100 S.Ct. at 1954, n. 11.
Because the plain language of § 1381 and its legislative history demon-
strate that the on-board observer program was limited to research duties
during the two-year period following passage of the Act, the Secretary's
regulation adopting an indefinite policy of on-board observers for en-
forcement purposes as well as research is unauthorized.
The absence of statutory authorization, however, is only one basis for
finding this regulation invalid. The regulation also offends the Constitu-
tion because it empowers federal inspectors to conduct searches in viola-
tion of the fourth amendment.
The majority, in its discussion of the regulation’s fourth amendment
impact, side-steps and fails to confront the threshold question of whether
the intrusiveness of stationing government observers on private fishing
vessels for extended periods constitutes a search. The majority suggests
that the observer policy may not constitute a search within the meaning
of the fourth amendment because the government officials confine their
observations to the open deck or open sea. This understates the actual
operation of the observers. They are more than mere passive onlookers;
they are uninvited government inspectors who live with the crew for
weeks at sea, watching all aspects of fishing operations, conducting
research and collecting data and information that may be used against
the tuna fishermen in civil and criminal proceedings. This is not ‘‘a brief
detention where officials come on board, visit public areas of the vessel,
and inspect documents.”’ United States v. Villamonte-Marquez,
U.S. ____, 103 S.Ct. 2573, 2581, 77 L.Ed.2d 22 (1983). This regulation
places live-in government inspectors on private vessels for surveillance
purposes over a period of months and results in the type of governmental
invasion that is well within the protection of the fourth amendment.
Despite the majority’s ambivalence on this issue, the use of government
inspectors under the regulation is a search within the meaning of the
fourth amendment. As such, it is presumptively unconstitutional in the
absence of a warrant, and ‘‘(t]he burden is on the government to prove
that the departure from the warrant requirement was justified.’” United
States v. Martin, 693 F.2d 77, 78 (9th Cir. 1982) (per curiam); Coolidge
v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d
564 (1971).
The majority decides, however, that even if this use of observers con-
Stitutes a search, it is reasonable because it falls within the pervasively
regulated industry exception to the warrant requirement. The majority
Suggests that because the tuna fishing industry has been subject to
government regulation, the acceptance of federal observers must be part
of the regulatory burden that goes with the benefit of tuna fishing. The
majority ventures into uncharted territory, however, because the
Supreme Court has admonished that the regulated industry exception is a
29a
narrow one, one that neither the Supreme Court nor this court has ever
embraced in the absence of explicit statutory authorization for the war-
rantless search scheme it purports to justify. Moreover, the regulated in-
dustry exception has never been used to justify warrantless surveillance
schemes such as the one in this case. Until now, the exception has only
applied to warrantless inspections of particular businesses on a periodic
basis. The majority breaks new ground by applying the exception to war-
rantless surveillance schemes conducted for days and months at a time.
In regulated industry cases, warrantless searches are still presumptively
unreasonable and the government retains the burden of justifying its
disregard for the warrant requirement. Marshall v. Barlow’s Inc., 436
U.S. 307, 312-13, 98 S.Ct. 1816, 1820-21, 56 L.Ed.2d 305 (1978). ‘‘The
businessman, like the occupant of a residence, has a constitutional right
to go about his business free from unreasonable official entries upon his
private commercial property.’ /d., at 312, 98 S.Ct. at 1820 (quoting See
v. Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943
(1967)). In this case, the government has failed to meet its burden of
justifying the warrantless intrusions which the challenged regulation
authorizes.
Under the pervasively regulated industry exception, a warrant may not
be required ‘‘when Congress has reasonably determined that warrantless
searches are necessary to further a regulatory scheme and the federal
regulatory presence is sufficiently comprehensive and defined that the
owner of commercial property cannot help but be aware that his proper-
ty will be subject to periodic inspections undertaken for specific pur-
poses.”’ Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 2539, 69
L.Ed.2d 262 (1981). While planting government observers on fishing
vessels for the duration of the expeditions may offer the most efficient
method of policing the Act, enthusiasm for this enforcement technique
should not obscure the essential constitutional requirement that the war-
rantless quality of such a procedure must be vital to the regulatory
scheme. The government has not proffered any convincing explanation
why waiver of the warrant requirement is essential to the enforcement of
the Act or to the effective implementation of the observer program.
In Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262
(1981), the Supreme Court upheld a warrantless search scheme under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 813(a) (1976).
The statute allowed federal mine inspectors to make unannounced in-
spections of underground mines four times a year and surface mines
30a
twice a year. The Court noted that a warrant requirement could frustrate
such an inspection scheme because unannounced inspections were need-
ed to effectuate the scheme’s objective of deterring hazardous mine con-
ditions. /d. at 603, 101 S.Ct. at 2540. In United States v. Kaivo Maru
No. 53, 699 F.2d 989 (9th Cir.1983), this court upheld a warrantless
search scheme designed to enforce the Fishery Conservation and
Management Act. 16 U.S.C. § 1861(b). The court concluded that
dispensing with the warrant requirement for Coast Guard inspections of
fishing boats in the Fishery Conservation Zone was necessary due to the
logistical barriers of obtaining a warrant tor ships at sea. /d. at 995,
A comparable element of necessity is missing in this case. The regula-
tion authorizes boarding by federal observers at the ume of departure
and provides for notification of the observer presence several days before
the expedition begins. After they are aboard, the observers make their
observations and inspections throughout the duration of the fishing trip.
Nothing in this procedure indicates that a warrant requirement would
frustrate the objectives of the regulatory search scheme. Research and
observation activities under the regulatory procedure can be conducted
in the same manner whether or not a warrant is obtained. Although a
warrant requirement in this case might be an administrative annoyance,
the inconvenience it poses is an insufficient basis to ‘‘vitiate the general
constitutional requirement that for a search to be reasonable a warrant
must be obtained.”’ Marshall, 436 U.S. at 324, 98 S.Ct. at 1827. More-
over, a Warrant requirement pursuant to a regulatory search scheme need
not be based on evidence of specific violations or actions on particular
boats. A warrant requirement in this context would be designed to ensure
governmental compliance with reasonable legislative and regulatory stan-
dards for the frequency and scope of the search operation. /d. at 320, 98
S.Ct. at 1824; Camara v. Municipal Court, 387 U.S. $23, 538, 87 S.Ct.
1727, 1735-36, 18 L.Ed.2d 930 (1967). Such a requirement preserves the
historic function of checking the potential for arbitrary government con-
duct without frustrating the legitimate objectives of the Marine Mammal
Protection Act. This balance is especially important as virtually all
guidelines regarding the conduct of the observer operation emanate from
internal agency policies instead of statutory or regulatory guidelines with
force of law.
As the reasonableness of a regulatory search scheme ‘depends on the
specific enforcement needs and privacy guarantees of each statute,”’
Kaiyo Maru No. 53, 699 F.2d at 995, and as the burden of demonstrating
the need to by-pass the warrant requirement rests with the government,
the absence of any persuasive proof that warrantless searches are
3la
necessary calls for adherence to the general rule instead of the exception.
A warrant is required for this regulatory search scheme.
Because 50 C.F.R. § 216.24(f) exceeds congressional authorization and
establishes a search scheme in violation of the fourth amendment of the
Constitution, I dissent.
FERGUSON, Circuit Judge, dissenting:
Today the majority installs a federal agent in the temporary home of
14 to 18 fishermen for a two- to three-month period without requiring a
warrant or a showing of probable cause to believe that the law has been
broken. The fourth amendment assuring that the people are to be secure
in their homes, mandates that warrantless government intrusion into
even a temporary home is per se unreasonable. This protection is not lost
because the place called home is also used for commercial purposes, i.e.
as a fishing vessel, for both commercial premises and seafaring vessels
are covered by the fourth amendment.
The National Oceanic and Atmospheric Administration (NOAA), an
agency of the federal government, has by regulation placed federal
agents on board tuna fishing vessels for two- to three-month fishing trips
by conditioning the license to fish for tuna upon the vessel owner’s con-
sent to the presence of federal observers. 50 C.F.R. § 216.24(f) (1982).
The federal ‘‘observers’’ are authorized to conduct research and collect .
information ‘‘which may be used in civil or criminal penalty proceedings,
forfeiture actions, or permit or certificate sanctions.”’ id. § 216.24(f)(1),
while they live for the extended fishing trip on a 150- to 250-foot boat
with the crew of 14-18 men. M.K. Orbach, Hunters, Seamen, and En-
trepreneurs (1977) (hereinafter ‘‘Orbach’’). It has been stipulated by the
parties that the observers take their meals with the fishermen, are not
confined to any particular areas of the vessel, and are expected to ‘‘main-
tain open communication’’ with and question vessel operators and other
personnel while recording data pertaining to the enforcement of the
Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1407.
Any possibility of separating the business aspects of a fishing vessel
from the home aspects is belied by the realities of life on such a vessel:
32a
[I]t is impossible to get more than about $0 feet from any of the other
1§ men with whom you are going to spend the next two months. You
can draw curtains or close doors and remain out of sight a good part
of the time, but you can never get away trom them, and the fishing
process forces you into regular interaction with them.
Orbach at 25 (emphasis in original). Both Congress and the Supreme
Court have acted to specially protect the rights and comforts of seamen
due to this unusual characteristic of their work. See Aguilar v. Standard
Oil Co., 318 U.S. 724, 732, 63 S.Ct. 930, 934-35, 87 L.Ed. 1107 (1943)
(‘Of necessity, during the voyage [the seaman] must eat, drink, lodge
and divert himself within the confines of the ship. In short, during the
period of his tenure the vessel is not merely his place of employment; it is
the framework of his existence."*):; /shrandtsen Co. v. Johnson, 343 U.S.
779, 782, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952); Warner v. Goltra,
293 U.S. 185, 162, 5§ S.Ct. 46, 49, 79 L.Ed. 254 (1934), (‘*[T]he
maritime law by inveterate tradition has made the ordinary seaman a
member of a favored class.’’).
The NOAA's effort to install a federal agent on board a fishing vessel
without securing a warrant based on probable cause is reminiscent of the
‘‘indiscriminate searches and seizures conducted under the authority of
‘general warrants’ [which] were the immediate evils that motivated the
framing and adoption of the Fourth Amendment.’* Payton v. New
York, 445 U.S. 573, §83, 100 S.Ct. 1371, 1378, 63 L.Ed.2d 639 (1980);
Marshall v. Barlow's, Inc. , 436 U.S. 307, 311, 98 S.Ct. 1816, 1819-20, 56
L.Ed.2d 305 (1978). The fourth amendment protects ‘‘[t}he right of the
people to be secure in their persons, houses, papers, and effects... .”’
The Supreme Court has detined the scope of the fourth amendment to
include a person's ‘‘reasonable expectation of privacy."’ Aatz v. United
States, 389 U.S. 347, 88 S.Ct. §07, 19 L.Ed.2d 576 (1967). Such a defini-
tion extends fourth amendment protections beyond the literal meaning
of ‘thouses’’ to temporary residences, such as a hotel, Stoner v. Califor-
nia, 376 U.S. 483, 490, 84S.Ct. 889, 893, 11 L.Ed.2d 856 (1964), a room-
ing house, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93
L.Ed. 153 (1948), and even a mobile home, People v. Carney, 34 Cal.3d
$97, 194 Cal.Rptr. 500, 668 P.2d 807 (1983) and to commercial premises,
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S.Ct. 2319, 2326, 60
L.Ed.2d 920 (1979) (adult bookstore); Mancusi v. DeForte, 392 U.S.364,
367, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968) (office); See v. City of
Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967)
(warehouse), as well as to seafaring vessels, United States v. Villamonte-
33a
Marquez, U.S. , 103 S.Ct. 2573, 2581, 77 L.Ed.2d 22 (1983),
and automobiles, Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S.Ct.
1391, 1400-01, 59 L.Ed.2d 660 (1979). More important, the ‘Fourth
Amendment protects people, not places,’’ Katz v. United States, 389
U.S. at 351, 88 S.Ct. at $11, and thus prohibits warrantless surveillance
of a person's ordinarily private actions and words. /d; United States v.
United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134-35,
32 L.Ed.2d 752 (1972). As the Court stated over twenty years ago:
At the very core [of the fourth amendment] stands the right of a man
to retreat into his own home and there be free from unreasonable
governmental intrusion. This Court has never held that a federal of-
ficer may without warrant and without consent physically entrench in-
to a man’s office or home, there secretly observe or listen, and relate at
the man’s subsequent criminal trial what was seen or heard.
Silverman vy. United States, 365 U.S. 505, §11-12, 81 S.Ct. 679, 683, §
L.Ed.2d 734 (1961) (citations omitted). It is precisely this ‘‘right to be let
alone,’’ Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, §72,
72 L.Ed. 944 (1928) (Brandeis, J., dissenting), that is trampled when tuna
fishermen are required to live, eat, sleep, lodge and relax in the presence
of a federal agent within the confines of a 150- to 250-foot boat in the
middle of the ocean for two to three months at a time.
The fourth amendment provides that ‘‘The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
Searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause . . . particularly describing the place to be
searched, and the persons or things to be seized."’ A warrantless search is
presumptively unreasonable. Payton v. New York, 445 U.S. at 586 n.
25, 100 S.Ct. at 1380 n. 25; Marshall v. Barlow's, Inc., 436 U.S. at 312,
98 S.Ct. at 1820; United States v. United States District Court, supra. \f
the reasonableness of a search could be based ‘‘on little more than a sub-
jective view regarding the acceptability of certain sorts of police conduct,
and not on considerations relevant to Fourth Amendment interests . .
Fourth amendment protection in this area would approach the evapora-
tion point.” Chimel v. California, 395 U.S. 752, 764-65, 89 S.Ct. 2034,
2041, 23 L.Ed.2d 685 (1969). Rather, ‘‘a search of private property
without proper consent is ‘unreasonable’ unless it has been authorized by
a valid search warrant” or falls within one of carefully defined excep-
tions to the warrant requirement. Camara v. Municipal Court, 387 U.S.
$23, 528-29, 87 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930 (1967). This rule
must be strictly enforced as ‘‘[t]he right of officers to thrust themselves
into a home is also a grave concern, not only to the individual but to a
34a
society which chooses to dwell in reasonable security and freedom from
surveillance. When the right of privacy must reasonably yield to the right
of search is, as a rule, to be decided by a judicial officer, not by a
policeman or government enforcement agent.”’ /d. at $29, 87 S.Ct. at
1731 (quoting Johnson vy. United States, 333 U.S. 10, 14, 68 S.Ct. 367,
369, 92 L.Ed. 436 (1948)). As shown by Judge Tang in his dissent, the
regulation at issue here cannot be justified under any of the recognized
exceptions to the warrant requirement, particularly the ‘*pervasively
regulated industry”’ exception.
Tuna fishermen do not waive their right to be free from unreasonable
search or surveillance by temporarily living onboard a fishing vessel. The
fishing boat is not just their place of employment, but for two to three
months it is ‘tthe framework of [their] existence,” Aguilar vy. Standard
Oil Co., 318 U.S. at 732, 63 S.Ct. at 934, and their home. This home
cannot be entered by law enforcement officers absent a warrant based on
probable cause to believe that a crime has been or is being committed. It
is well established that an administrative regulation which by its terms
violates the fourth amendment is unconstitutional and should not be en-
forced. Marshall v. Barlow's, Inc., supra.
The majority states that it 1s necessary to place federal observers
aboard tuna fishing vessels to protect the lives of porpoises. Maj.op., at
760, 761. However, it fails to address the question whether a warrant
authorizing the placement of such observers on a case-by-case basis
would’ undercut the objectives of the Marine Mammal Protection Act.
Clearly, if a warrant Is required under the Marine Mammal Protection
Act, those on the fishing vessel upon which an observer may be stationed
could conceal no more than they could conceal with the federal agent
forced aboard without the prophylatic protections of a warrant issued by
a neutral officer. See Marshall v. Barlow’s, Inc., 436 U.S. at 323, 98
S.Ct. at 1826. Moreover, the regulation by its own terms undermines the
argument that notice would frustrate the objectives of the observer pro-
gram as it provides that the fishing vessel owner receive notice of the
placement of an ‘“‘observer”’ five days prior to the voyage. 50 C.F.R. §
216.24(f)(4). Contrary to the majority position (maj.op., at 765), mere
knowledge of the existence of a regulatory purpose cannot eliminate
one’s expectation of privacy, for that would consume the rule against
warrantless searches in the exception. Cf. Michigan v. Tyler, 436 U.S.
499, 508, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978).
35a
The majority states that the warrantless quartering of a federal agent
on a 30-60 day fishing trip is so clearly limited by regulation that the
regulation is the substantial equivalent of a warrant. Maj.op. at 765-766.
However, it has been recognized that when law enforcement officers are
lawfully on the premises for limited purposes, the restrictions placed on
the scope of their search or duties ‘may be more theoretical than real.”’
Payton vy. New York, 445 U.S. at 589, 100 S.Ct. at 1381. Moreover, the
majority's position that the observer may legitimately gather evidence in
‘plain view’’ on the ship belies the weight of the limitations placed on
the observer by the regulations. Maj.op., at 763. The fishermen are
placed in the position of hiding their everyday acts and comments trom
the federal agent in order to establish and protect their fundamental right
to be let alone. See //linois v. Andreas, —. U.S. ____, 103 S.Ct. 3319,
3327, 77 LEd.2d 1003 (1983) (Brennan, J., dissenting). The NOAA has
made the price of being a tuna fisherman include the ‘‘dread of subjec-
tion to an unchecked surveillance power."’ United States vy. United
States District Court, 407 U.S. at 314, 92 S.Ct. at 2135,
The fourth amendment was a response to the general warrant whereby
an officer was authorized to search private premises without evidence of
unlawful activity. Marshall v. Barlow’s, Inc., 436 U.S. at 311, 98 S.Ct.
at 1819-20. Today the majority holds that a federal agent cannot only
search a private vessel, but collect data, question fishermen, and live on
the vessel for months at a time without the need to secure a warrant bas-
ed on a legitimate suspicion of unlawful activity. The regulation at issue
here can subject ‘‘even the most law-abiding citizen”’ to unprecedented
and unjustified government intrusion and surveillance. See Camara vy.
Municipal Court, 387 U.S. at $30, 87 S.Ct. at 1731. Surely the lives of
porpoises cannot be more sacred to us than the right to privacy and
freedom trom government intrusion protected by the fourth amendment.
es FILED
UNITED STATES COURT OF APPEALS yy gg,
FOR THE NINTH CIRCUIT pyitiip ¢ winorery
JOHN R. BALELO, et al., ) No. 81-5806
)
Plaintiffs-Appellees,
D.C. No.
lies CV 80-1646 GT (H)
MALCOLM BALDRIDGE,® Secretary of
Commerce of the United States, et al.,
Defendants-Appellants.
JOHN R. BALELO, et al., No. 81-5807
Plaintiffs-Appellees,
-VS-
MALCOLM BALDRIDGE,®* Secretary etc.,
Defendants,
and
ENVIRONMENTAL DEFENSE FUND, INC. and
DEFENDERS OF WILDLIFE, INC.,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
| OPINION
)
)
)
)
)
)
)
)
)
)
)
Intervenors-Defendants- )
Appellants. )
)
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding
Argued and Submitted August 4, 1982
BEFORE: ELY, GOODWIN, and WALLACE, Circuit Judges.
* We substitute Malcolm Baldridge, the Secretary of Commerce, as successor to the
original appellant Philip M. Klutznick, the former Secretary, pursuant to Fed. R. App.
P. 43(c).
37a
WALLACE, Circuit Judge:
Balelo and other tuna boat captains (the captains) brought this action
seeking a declaration that $0 C.F.R. § 216.24(f), promulgated by the
Secretary of Commerce (the Secretary), is invalid because it requires the
captains to allow government observers on board their ships to qualify
for permits allowing the incidental taking of porpoises during tuna
fishing. The captains also seek to enjoin the Secretary's conditioning of
permits on acquiescence to the observer program arg the use of any
observer-gathered data or its fruits in civil, criminal, and administrative
proceedings.
The district court held that the regulation is invalid insofar as it permits
the use of observers to gather information for purposes other than scien-
tific research and enjoined the Secretary's use of the information in civil
and criminal penalty proceedings or as grounds for administrative sanc-
tions. The district court also enjoined the Secretary's conditioning the
grant of porpoise-taking permits upon acceptance of on-board observers
who might collect information to be used for non-scientific purposes.
The Secretary did not challenge the district court's order except by argu-
ing that the regulation is valid. We therefore found it unnecessary, with
one exception, to express any opinion on whether the scope of the relief
granted was appropriate. We affirm in part, reverse in part and remand.
The facts of this case are detailed in the district court's opinion, 519 F.
Supp. §73 (S.D. Cal. 1981). Briefly, tuna, especially yellowfin, tend to
swim in association with certain species of porpoise. Capitalizing on this
known, but scientifically unexplained phenomenon, tuna fishermen
often set their nets around schools of porpoise to capture the tuna swim-
ming beneath. When the nets are pursed, porpoises as well as tuna often
are caught; the porpoises, air-breathing mammals, sometimes are drown-
ed or injured.
In 1972 Congress enacted the Marine Mammal Protection Act, 16
U.S.C. §§ 1361-407 (the Act). The Act imposed a moratorium on the
taking of marine mammals, but permitted takings incidental to commer-
cial fishing during a two-year period. /d. § 1371. The Act permitted
authorized observers to board commercial fishing vessels during the two-
year period, after notice, for purposes of research and observation. Jd. §
1381(d). In 1974, both the statutory research observation program and
38a
the commercial fishing exemption expired. Commercial fishermen now
are allowed to take marine mammals incidentally during fishing opera-
tions only under permits issued subject to the Secretary's regulations.
The Act provides severe civil and criminal penalties for violations of its
provisions or of the regulations and permits issued by the Secretary.
Fines not to exceed $10,000 or $20,000 per violation, imprisonment for
not more than one year per violation, and forfeiture of the violator’s
cargo may be imposed. /d. §§ 1375-76.
The captains specifically challenge the validity of SO C.F.R. §
216.24(f)(1), which provides:
The vessel certificate holder of any certificated vessel
shall, upon the proper notification by the National
Marine Fisheries Service, allow an observer duly
authorized by the Secretary to accompany the vessel on
any or all regular fishing trips for the purpose of conduct-
ing research and observing operations, including collect-
ing information which may be used in civil or criminal
penalty proceedings, forfeiture actions, or permit or cer-
tificate sanctions.
The captains argue that the regulation subjects them to a search that is
neither statutorily authorized nor constitutionally permissible. The
Secretary argues that the regulation is authorized by section 103 of the
Act, 16 U.S.C. § 1373, which empowers the Secretary to:
prescribe such regulations with respect to the taking...
of animals from each species of marine mammal .. . as
he deems necessary and appropriate to insure that such
taking will not be to the disadvantage of those species and
population stocks and will be consistent with the pur-
poses and policies [of this Act].
The Secretary further argues that an observer's presence on the ship does
not constitute a search. Alternatively, the Secretary argues that even if
stationing an observer aboard constitutes a search, the search is constitu-
tionally permissible under the pervasively-regulated industry exception
established by Colonnade Catering Corp. v. United States, 397 U.S. 72
(1970), and United States v. Biswell, 406 U.S. 311 (1972), and most
recently applied by the Supreme Court in Donovan v. Dewey, 452 U.S.
594 (1981).
39a
II
The first question we address is whether stationing an observer aboard
a tuna boat constitutes a search. We agree with the district judge's con-
clusion that it does. Although not every boarding constitutes a search,
see United Statcs vy, Olander, §84 F.2d 876, 888 (9th Cir. 1978) (boarding
to serve process), vacated on other grounds sub nom. Harrington vy.
United States, 443 U.S. 914 (1979), boarding of a vessel for any type of
investigation or inspection is a search within the scope of the fourth
amendment. United States v. Raub, 637 F.2d 1205, 1208 (9th Cir.), cert.
denied, 449 U.S. 922 (1980). The boarding and stationing of government
agents on tuna boats, as mandated by the regulation, subjects the captain
and crew at ‘he very least to an inspection of their fishing operations.
Whether the government intends to use the information it gathers for
scientific research alone or in criminal and civil proceedings, the inspec-
tion falls within the fourth amendment.
This result is consistent with the rationale of Aatz v. United States, 389
U.S. 347 (1967), where the Supreme Court held that a violation of an in-
dividual's ‘legitimate expectation of privacy,’ see Rakas v. Illinois, 439
U.S. 128, 143 (1978), constitutes a fourth amendment search. Commer-
cial fishermen often operate in isolated areas of the ocean. Although
their operations are in areas accessible to law enforcement officers and to
the public, giving them no reasonable expectation of absolute privacy, we
conclude that they could reasonably expect a greater amount of privacy
than that available in the presence of uninvited on-board observers.
The Secretary argues that the ‘‘plain view’’ doctrine applies because
the fishing operations occur in waters accessible to the public. Under the
‘plain view’’ doctrine, an officer whose presence at a certain location is
legal may observe his surroundings without violating the fourth amend-
ment. See Colorado v. Bannister, 449 U.S. 1, 4 & n.4 (1980) (per
curiam); Harris v. United States, 390 U.S. 234, 236 (1968); United States
v. Wheeler, 641 F.2d 1321, 1324-25 (9th Cir. 1981). The Secretary argues
that because government agents could be present legally in the vicinity of
any tuna boat by use of an airplane or another vessel and could observe
legally the fishing operations in ‘‘plain view,’* he is simply procuring in-
formation in a more efficient way.
The Secretary's argument distorts the ‘plain view’’ doctrine. The pro-
tections of the fourth amendment are not abrogated simply because in-
formation is otherwise legally accessible. Information legally accessible
Wa
should be legally procured. If it is so procured, no violation of the fourth
amendment occurs. If, however, it is procured via an unreasonable
search, a fourth amendment violation occurs. See Lo-Ji Sales, Inc. v.
New York, 442 U.S. 319, 329 (1979) (retail store inviting the pubic to
enter consents only to examination of merchandise in the manner used by
the ordinary customer). The plain view doctrine comes into play when a
government officer is legally present and then observes something in
plain view. See, e.g., Colorado v. Bannister, supra; Harris v. United
States, supra. Here, the government attempts to use its police powers to
require mandatory observer presence on the fishing vessel and then to
allow the observer to report what he saw. This avenue of access to infor-
mation about the vessel’s fishing operations is not accessible to the
public; the information which might be procured by on-board observers
does not fall under the plain view doctrine.
II]
Holding that the plain view doctrine does not apply and that the forced
presence of an on-board observer constitutes a search under the fourth
amendment is only our first step. Our next inquiry does not require us to
go so far as to determine whether there was a constitutional violation. In
this case, we need only determine if the observer program raises substan-
tial constitutional questions. When agency action raises issues of ‘‘ques-
tionable constitutionality,’’ see Greene v. McElroy, 360 U.S. 474, 506-08
(1959), the statutory authorization for that action must be clear. We
conclude that there is no clear statutory authorization for the observer
program and therefore hold that promulgation of the regulations esta-
blishing the program was outside the power granted the Secretary.
Although courts ordinarily give deference to agency interpretations of
the statutes they are charged to enforce, see New York State Department
of Social Services v. Dublino, 413 U.S. 405, 421 (1973); Adams v.
Howerton, 673 f.2d 1036, 1040 (9th Cir.), cert. denied, 102 S. Ct. 3494
(1982), such deference is inappropriate when an agency interprets its
general enabling legislation to permit actions of doubtful constitutionali-
ty. In Greene v. McElroy, supra, the Supreme Court held that absent ex-
plicit presidential or congressional authorization, an agency could not
deprive a federal employee of his job in a proceeding in which he was not
afforded the right to confront and cross-examine witnesses. The Court
found that executive orders granting the agency power to establish a
system to protect classified information was not a sufficient authoriza-
tion. The Court reasoned that, absent an express contrary indication, it
4la
assumes that Congress or the President intends to afford persons tradi-
tional cnstitutional rights. Therefore, administrative action raising
serious constitutional questions must be explicitly authorized. A decision
to employ constitutionally questionable procedures
must be made explicitly not only to assure that individuals
are not deprived of cherished rights under procedures not
actually authorized, . . . but also because explicit action,
especially in areas of doubtful constitutionality, requires
careful and purposeful consideration by those responsible
for enacting and implementing our laws. Without ex-
plicit action by lawmakers, decisions of great constitu-
tional import and effect would be relegated by default to
administrators who, under our system of government, are
not endowed with authority to decide them.
360 U.S. at 507 (citation omitted). The Court held that before it would
decide whether a person could be deprived of his employment in a pro-
ceeding not permitting confrontation of witnesses, ‘‘it must be made
clear that the President or Congress, within their respective constitu-
tional powers, specifically has decided that the imposed procedures are
necessary and warranted and has authorized their use.”’ /d.; cf. Midwest
Video Corp. v. FCC, §71 F.2d 1025, 1052 (8th Cir. 1978) (‘‘[W]here. ..
potential incursions into sensitive constitutional rights are involved,
careful scrutiny is required in delineating the scope of authority that
Congress intended the agency to exercise.’’), aff'd, 440 U.S. 689 (1979).
Under the regulations promulgated by the Secretary, a tuna boat
Operator must agree to allow observers aboard to qualify for a permit
allowing the incidental taking of porpoise during fishing operations. We
have concluded that stationing the observer on board constitutes a
search. Therefore, if such searches raise serious constitutional questions,
the observer program must be invalidated. We conclude that they do.
In See v. City of Seattle, 387 U.S. 541 (1967), the Supreme Court held
that warrantless administrative entry, without consent, into the portions
of commercial premises that are not open to the public violates the
fourth amendment. /d. at 545. The Court reasoned:
As we explained in Camara [v. Municipal Court, 387 U.S.
523 (1967)], a search of private houses is presumptively
unreasonable if conducted without a warrant. The
42a
businessman, like the occupant of a residence, has a con-
Stitutional right to go about his business free from
unreasonable official entries upon his private commercial
property. The businessman, too, has that right placed in
jeopardy if the decision to enter and inspect for violation
of regulatory laws can be made and enforced by the in-
spector in the field without official authority evidenced
by a warrant.
Id. at $43. Based on our reading of this statement, we conclude that war-
rantless searches of tuna boats by government observers are presumptive-
ly unreasonable. Therefore, unless these searches fall within a recogniz-
ed exception to the warrant requirement, they raise serious constitutional
questions.
The Secretary contends that the observer program falls within the
pervasively-regulated industry exception to the warrant requirement
established by Colonnade Catering Corp. v. United States, supra, and
United States v. Biswell, supra. Colonnade dealt with warrantless in-
spections of commercial premises in the regulation of liquor sales;
Biswell dealt with such searches in the regulation of firearms. More
recently, the Court upheld the warrantless inspection of mines. Donovan
v. Dewey, 452 U.S. 594 (1981). The Court has observed, however, that
these cases are ‘‘exceptions’’ involving ‘‘relatively unique circum-
stances.’’ Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978).
The pervasively-regulated industry cases are distinguishable from the
case before us. In each case upholding a warrantless search, the inspec-
tion was expressly authorized by statute. See Donovan v. Dewey, supra,
452 U.S. at 596; United States v. Biswell, supra, 406 U.S. at 311-12. The
Statute in each case was a critical factor in the Court’s determination that
an exception to the warrant requirement was appropriate. In Bisweill, the
Court stated that ‘‘the legality of the search depends not on consent but
on the authority of a valid statute.’’ 406 U.S. at 315. In Donovan v.
Dewey, the Court explained that an exception to the warrant requirement
can be recognized only when a ‘‘statute’s inspection program, in terms of
the certainty and regularity of its application, provides a constitutionally
adequate substitute for a warrant.’’ 452 U.S. at 603. See also Colonnade
Catering Corp. v. United States, supra, 397 U.S. at 73 nn.1 & 2, 77
(statute did not include forcible entries without a warrant; applying
fourth amendment standards); United States v. Raub, supra, 637 F.2d at
1207 (holding that search of a fishing vessel in area where certain fishing
43a
rights were reserved for Indians was within administrative search excep-
tion to warrant requirement) (‘‘Both the statute under which the [fishing]
regulations were promulgated and the court orders authorized enforce-
ment agents to board vessels without warrants to check identification and
to ascertain whether fishermen were in compliance with the applicable
fishing regulations.’’) (footnote omitted).
None of the cases dealt with the issue before us: whether regulations
promulgated under a statute authorizing an agency to prescribe regula-
tions to carry out the purposes of an act, but not specifically authorizing
warrantless searches, are valid. Our review of the cases convinces us that
express statutory authorization of the inspections was critical to their
holdings and that, absent that authorization, administrative regulations
would not have been held sufficient. The statutes made it clear that Con-
gress had decided ‘that the imposed procedures [were] necessary and
warranted and [had] authorized their use.’ Greene v. McElroy, supra,
360 U.S. at S07.
The limited nature of our holding in this case is obvious. We need not
decide whether a properly authorized observer program is constitutional.
The current program is of questionable constitutionality because it in-
cludes warrantless searches; those searches are not expressly authorized
by Congress. Also, we need not decide whether adequate congressional
authorization could ever be found in the absence of an express statutory
statement.’ We think that it would be difficult for Congress to manifest
clearly its authorization in another manner, but we only hold that con-
gressional authorization in this case is not clear. Except for the general
enabling statute, the Secretary's only evidence of congressional
authorization is testimony from the Congressional Oversight Hearings
held in 1977, five years after the enabling legislation was passed. What-
ever the significance of that evidence, it is irrelevant. Congressional
authorization in areas of doubtful constitutionality ‘‘cannot be assumed
by acquiescence or non-action.’’ /d. Even assuming that Congress,
1. None of the cases cited to us by the Secretary suggests that an express Statutory
authorization is dispensable. United States v. Schafer, 461 F.2d 856 (9th Cir.), cert.
denied, 409 U.S. 881 (1972), and United States v. Watson, 678 F.2d 765 (9th Cir.
1982), both dealt with regulations promulgated under statutes that expressly authoriz-
ed inspections. United States v. Davis, 482 F.2d 893 (9th Cir. 1973), dealt with regula-
tions promulgated under the auuthority of an executive order, and is not helpful on
the question of congressional authorization. United States v. Rucinski, 658 F.2d 741
(10th Cir. 1981), cert. denied, 102 S. Ct. 1430 (1982), is not binding precedent in this
circuit and is distinguishable because it raises questions of contract and waiver that we
need not and do not address.
ll
44a
without amending the statute, indicated its approval of the Secretary’s
actions, that approval is not sufficient evidence of authorization.
We therefore conclude that congressional authorization for the war-
rantless inspection of tuna boats is not clear, that promulgation of the
observer program was not within the powers that Congress granted the
Secretary, and that the regulation requiring certificate holders to allow
observers on board is invalid.’
lV
One part of the order of the district court requires special attention.
We have held that the regulation is invalid. The district judge, however,
held the regulation invalid only insofar as it allows observers to gather in-
formation for non-scientific purposes. 519 F. Supp. at $80-81. We find
no basis in the cases for upholding the use of the observer program for
scientific but not for non-scientific purposes, nor has any sound reason-
ing been asserted in support of such a distinction. The regulation man-
dates an unauthorized search whether the Secretary intends to use the in-
formation he gathers for scientific research or in criminal or civil pro-
ceedings. Thus, we hold that the regulation requiring the search is in-
valid for all purposes. We therefore affirm the district court’s judgment
in part, reverse in part, and remand for entry of injunctive relief consis-
tent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
2. Our disposition of the case on these grounds makes it unnecessary to reach the
captains’ argument that the regulation ts inconsistent with section 107 of the Act, 16
t S.C. § 1977, which authorizes searches with warrants or upon reasonable cause to
believe that the vessel or its crew 1s in violation of the Act. We observe, however, that
congressional authorization tor the two-year observation program, 16 U S.C. §
1381(d). which has now expired, was part of the same law as section 107 f which was
not to expire
4Sa
FILED
tar nes
GOODWIN, Circuit Judge, dissenting JAN'S (323
Pis:LuiP S. WINSEREY
Cut+4, So. CoUe? OF APE ERLS
Assuming that stationing a government agent on board a tuna boat
constitutes a search, United States v. Raub, 637 F.2d 1205, 1208 (9th Cir.
1980), I would hold that the search in this case is constitutionally per-
missible.
In United States v. Raub, we held that the need to enforce Indian trea-
ty rights and the pervasive regulation of commercial fishing made the
warrantless boarding of fishing vessels in the Puget Sound salmon fishery
constitutionally permissible. Tuna fishing, like salmon fishing, is a per-
vasively regulated industry. This case is like Rawb because enforcement
of the Marine Mammal Protection Act similarly requires boarding and
observation of fishing vessels.
The federal government's concern about the destruction of porpoise
populations by tuna fishing permeates the statutory scheme of which 16
U.S.C. § 1373 is a part. The overriding purpose of the Marine Mammal
Protection Act, 16 U.S.C. §§ 1361-1407, is the protection of marine
mammals. Committee for Humane Legislation, Inc. v. Richardson, 414
F. Supp. 297, 306-309 (D.C. Cir.), affirmed, $40 F.2d 1141 (D.C. Cir.
1976). The majority unnecessarily eliminates the only practicable
method of enforcing the statute. Without observers stationed aboard
tuna vessels, the government is powerless to enforce the Act, or to collect
the scientific data upon which intelligent regulation of the tuna industry's
incidental harvest of porpoises must be predicated.
Commercial fishing ts not only pervasively regulated,’ but the very
“Federal regulation of the fishing industry dates back to a 1793 federal
lieense requirement for fishing vessels. Act of Feb. 18, 1793, 1 Stat. 308... .
See generally Northern Pacific Halibut Act of 1937, 80 Stat. 328, 16 U.S.C,
§§ 772-772), Act of Aug. 4, 1949, 38 Stat. 692, 16 U.S.C. §§ 781-786
(sponges trom Gulf of Mexico or Straits of Florida); Whaling Convention
Act of 1980, 64 Stat. 421, 16 U.S.C. §§ 916-916/, Tuna Conventions Act of
1980, 64 Stat. 777, 16 U S.C. 8§ 951-961; Northwest Atlantic Fisheries Act
of 1980, 64 Stat. 1067, 16 U.S.C. §§ 981-991; North Pacific Fisheries Act of
1954, 68 Stat 698. 16 S.C §§ 1021-1032; Offshore Shrimp Fisheries Act
of 1973, 87 Stat. 1061, 16 U.S.C. §§ 1100b to 1100b-10; Fishery Conserva-
tion Management Act of 1976, 90 Stat. 331, 16 U.S.C. §§ 1801-1882."
United States v Raub, 637 F 2d 1205, 1209 n. § (Mh Cir. 1980).
46a
activity at issue in this case has been the focus of Congressional action.
Congress has banned the incidental taking of porpoises by vessels under
United States jurisdiction, 16 U.S.C. § 1372, except under permits issued
pursuant to 16 U.S.C. § 1374. Section 1374 requires that permits issue
only in conformance with regulations promulgated under 16 U.S.C.
1373. ‘‘Existing and future levels of marine mammal species and popula-
tion stocks’’ 16 U.S.C. § 1373(b)(1), and “‘the marine ecosystem and
related environmental considerations,’’ 16 U.S.C. § 1373(b)(3), must be
considered in promulgating the regulations. The regulations may restrict
the taking of porpoises by species, number, age, sex or other factors, 16
U.S.C. § 1373(c).
The challenged practice is vital to development of reasonable regula-
tions under § 1373(b) and to enforcement of restrictions promulgated
under § 1373(c). Acceptance of observers is a reasonable condition for
the issuance of a permit to fish under the restrictions of 16 U.S.C. § 1373.
Without the ability to promulgate sensible regulations under the Act
and to enforce those regulations, the Secretary's power to issue permits is
in doubt. Without validly issued permits, fishing would be impaired.
NOAA observers thus not only protect porpoises, but may help to keep
American tuna on the supermarket shelves in a manner consistent with
the preservation of the mammals. See Committee for Humane Legisla-
tion v. Richardson, $40 F.2d 1141 (D.C. Cir. 1976); ‘*[T]he Act was
deliberately designed to permit takings of marine mammals only when it
was known that that taking would not be to the disadvantage of the
species.’’ /d. at 1150 (Emphasis in original.)
Observation of tuna fishing is necessary for enforcement of the Marine
Mammal Protection Act. Authorization is thus clearly implied by the
statute. Explicit authority for inspections of other regulated industries
has been given by statute, and upheld for the same reason as we would
uphold this regulation: that the inspections were necessary to carry out
the intent of Congress. See, e.g., Donovan v. Dewey, 452 U.S. 594
(1981); United States v. Biswell, 406 U.S. 311 (1972); Colonnade Corp.
vy. United States, 397 U.S. 72 (1970). The majority’s attempt to
distinguish these cases is unconvincing.
Here, as in Colonnade, Biswell and Dewey, the potential for abuse of
warrantless searches is slim because the inspection is limited to a narrow-
ly defined and specialized activity, tuna fishing.
47a
Like the businessmen in Colonnade, Biswell and Dewey, boat
operators enter the business of tuna fishing with every expectation that
inspection, not freedom from inspection, will be the rule. In fact, the
tuna industry argued before Congress that its continued cooperation
with the inspection program is one reason why permits to kill porpoises
should issue.’
To strike down this inspection regulation, necessary to both the pro-
tection of porpoises and to the continued vitality of the legislative
scheme, upon a concern that ‘congressional authorization in this case is
not clear’’ seems contrary not only to the clear policy of the statute, but
also to Our Own recent precedent. United States v. Raub, supra.
?
f
[
John P. Mulligan, representing the Tuna Research Foundation, Inc., stated:
,
“it is imperative that we continue present research activities in order that
reliable data is produced and that we be given the necessary time to complete
the studies, All of the principal [sic] elements of the porpoise program are
just at beginning stages -- those being: gear research and development and its
related behavorial studies; life histories -- studies and surveys which include
the observer program;. . ."' Marine Mammal Protection Act: Hearings
before Subcommittee on Fisheries and Wildlife Conservation and the En-
vironment, 93rd Cong., Ist Sess., 72 (1973).
In another hearing later in 1974, the industry again lauded the observer program as
an example of its cooperation toward the goal of de minimis porpoise mortality, and ap-
pended to its testimony a summary of observer cruises conducted to that date. Marine
Mammal Protection Act: Hearings on H.R. 15273, H.R. 15459, H.R. 15810, H.R.
15967, H.R. 16043, H.R. 16777, before Subcomm. on Fisheries and Wildlife Conserva-
tion and the Environment, 93rd Cong., 2d. Sess, 195, 207-211 (1974).
48a
John R. BALELO, Andrew Castagnola, Leo Correia, Manuel S. Jorge,
Bryan R. Madruga, Harold Medina, John A. Silva, Ralph F. Silva,
Jr., George Sousa, Manuel S. Vargas, Jr., John B. Zolezzi, Jr.,
Plaintiffs,
v.
Philip M. KLUTZNICK, Secretary of Commerce of the U. S., Richard
A. Frank, Administrator, National Oceanic and Atmospheric
Administration and Terry Leitzell, Assistant Administrator for
Fisheries, National Marine Fisheries Service, Defendants.
Environmental Defense Fund, Inc., and Defenders of Wildlife,
Intervenor-Defendants.
No. 80-1646-GT(H).
United States District Court,
S. D. California.
July 24, 1981.
MEMORANDUM DECISION AND ORDER
GORDON THOMPSON, Jr., District Judge.
The case at bar concerns the statutory and constitutional validity of
the federal observer program on U. S. tuna vessels which fish in associa-
tion with porpoise. The issue is whether data gathered by these man-
datory on-board observers may be used against the vessel and crew in
civil, criminal and forfeiture proceedings. The material facts are not in
dispute and the case comes before the Court on cross-motions for sum-
mary judgment.
A bit of background concerning tuna purse-seining and the Marine
Mammal Protection Act is appropriate. Tuna, especially yellowfin, tend
to swim in association with porpoise, which are marine mammals. Cap-
italizing on this known, but scientifically unexplained phenomenon, tuna
purse-seiners often set their nets around schools of porpoise in order to
encircle the tuna swimming beneath. In the process of pursing the net,
some porpoise may become entrapped and be drowned or injured.
49a
Over the years, the fishermen have developed techniques and gear
designed to minimize porpoise mortality and injury, such as smaller mesh
nets, escape panels, and a back-down maneuver which causes part of the
net to submerge, allowing the porpoise to swim free. Since 1972, por-
poise mortality has declined from approximately 300,000 to approx-
imately 18,500 in 1979, based upon figures extrapolated from observed
vessels,
In 1972, Congress enacted the Marine Mammal Protection Act, 16
U.S.C. § 1361, et seq., which imposed a moratorium on the taking of
marine mammals, but excepted the commercial fishing industry during a
two-year period of research and development. Thereafter, the incidental
taking of marine mammals in connection with commercial fishing could
be allowed by the Secretary of Commerce subject to regulations and per-
mits. 16 U.S.C. §$ 1371, 1374. The Secretary has issued a comprehen-
sive set of regulations, SO C.F.R. § 216, et seg., which cover nearly all
aspects of tuna fishing ‘‘on porpoise,’’ from prohibition of setting on
certain species of porpoise, to net and maneuvering requirements, to
minutiae such as the condition of speedboats, scuba gear and face masks.
The penalties provided by the Act for violation of these regulations are
severe, ranging from civil penalties of $10,000.00 for each violation, to
criminal penalties of one-year imprisonment and/or $20,000.00 fine, to
forfeiture of the catch (which may have a value in excess of one million
dollars). 16 U.S.C. §§ 1378, 1376.
The case centers about one of the regulations adopted by the Secretary
of Commerce, 50 C.F.R. § 216.24(f), which in its present form (effective
January 1, 1981) reads in pertinent part:
““(f) Observers . . . (1) The vessel certificate holder of any certified
vessel shall, upon the proper notification by the National Marine
Fisheries Service, allow an observer duly authorized by the Secretary
to accompany the vessel on any or all regular fishing trips for the pur-
pose of conducting research and observing operations, including col-
lecting information which may be used in civil and criminal penalty
proceedings, forfeiture actions, or permit or certificate sanctions.”’
[Emphasis added.]
Under this regulation, the National Marine Fisheries Service
(NMFS"’), a division of the National Oceanographic and Atmospheric
Administration, stations federal observers, denominated ‘‘biological
technicians,"’ aboard tuna vessels for the duration of a fishing trip,
which often lasts two to three months and ranges thousands of miles into
50a
the ocean. The observer berths with the crew in the ship’s galley (at
government expense). During all fishing operations, the observer posi-
tions himself on deck and methodically records in numerous log books
and forms detailed information regarding porpoise stocks and species,
and the compliance of the vessel with the regulations. As part of his
duties under the Field Manual issued by NMFS, the observer questions
captain and crew regarding their estimates of porpoise. This data is then
turned over to the enforcement branch of NMFS, which issues notices of
violations against the vessel and crew. Such notices based upon observer-
gathered data have been issued and administrative proceedings in-
stituted, commencing in August 1977 under predecessor regulations.
Unless restrained, the Secretary indicates he will continue so to use the
observer data.
Plaintiff tunaboat captains contend that the observer program as im-
plemented by the regulation is in violation of the statute and of the
Fourth Amendment of the Constitution. Defendants contend that it is a
valid, and the only practical, method of enforcing compliance with the
Act. The starting point for analysis is whether the stationing of the
observer on the vessel constitutes a ‘‘search’’ within the meaning of the
Fourth Amendment.
{1} Recent decisions of the Ninth Circuit have made it clear that the
mere boarding of a vessel, commercial or private, by government agents
for any type of investigation or inspection is a search within the Fourth
Amendment. This was the specific holding of United States v. Raub, 637
F.2d 1205 (9th Cir. 1980), which involved the boarding of a fishing vessel
by an NMFS agent to check the owner’s Indian identification card. Also,
in United States v. Piner, 608 F.2d 358 (9th Cir. 1979), the boarding of a
pleasure craft in San Francisco Bay for routine safety and document
check was held to be a search. Since under the observer program there is
boarding by government agents who have, as one of their express pur-
poses, the gathering of information for use in civil, criminal or forfeiture
proceedings against the vessel or crew, their entry and presence on board
must be deemed a search.
{2, 3] Arguments advanced by Defendants and Intervenors that this
is not a search under the ‘‘plain view,”’ ‘‘open fields,’’ or ‘‘public view’’
doctrines are inapposite. As the Surpeme Court made clear in Coolidge
v. New Hampshire, 403 U.S. 443, 464-473, 91 S.Ct. 2022, 2037-2042, 29
L.Ed.2d 564 (1971), ‘‘plain view’’ applies only where the initial intrusion
is justified and the observation inadvertent or fortuitous. Here, the
Sla
observation is not inadvertent, but specifically intended. The “open
fields’’ doctrine regards technical trespasses or insignificant intrusions
onto the open exterior areas of private property as ‘‘de minimis”’ and im-
material to the validity of observatins made as a result of such intrusions.
Here the intrusion is not insignificant or ‘‘abstract and theoretical,’’ but
substantial. ‘*Public view’’ applies where law enforcement makes obser-
vations in the same fashion as members of the public. As the Supreme
Court indicated in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99
S.Ct. 2319, 2326, 60 L.Ed.2d 920 (1979), the law enforcement officer
must truly be positioned and act as a member of the public, and not
assume prerogatives and vantage points not accorded to the pubilc.
Here, since members of the public are not permitted aboard tuna vessels
at sea, the observer has a private vantage point carved out specially for
observers by the regulation and not available to the public.
Thus, the various ‘‘view’’ doctrines are inapposite since the initial
boarding of the vessel which gives the observer his continuous viewing
platform is itself a search within the Fourth Amendment. The issue then
is the authority for the search.
14] It is axiomatic that an administrator is a creature of statute and
that his authority derives solely from the statute pursuant to which he
acts. Soriano vy. United States, 494 F.2d 681, 683 (9th Cir. 1974);
Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 56
S.Ct. 397, 80 L.Ed. 528 (1936). We turn then to the statute to ascertain
the Secretary's authority to adopt the search regulation.
Congress did, in enacting the Marine Mammal Protection Act, provide
specifically for a type of observer program. In § 1381, the Congress
established a two-year period of research and development of new fishing
techniques and gear to minimize porpoise mortality and injury and an
observer program for research related thereto. It is obvious from that
section, however, that the sole function of the observers was research
and development, and that they had no enforcement role. In any event,
that express statutory authorization expired by its own terms on October
21, 1974, and Defendants do not, nor could they, seek to base the
Secretary's authority on that section.
1S] In § 1377 of the Act, entitled ‘‘Enforcement,”’ Congress expressly
conferred authority for searches pursuant to the Act and set the standard
for such searches. That section empowered enforcement officers to:
$2a
‘*(2) with a warrant or other process, or without a warrant if he has
reasonable cause to believe that a vessel or other conveyance subject to
the jurisdiction of the United States or any person on board is in viola-
tion of any provision of this subchapter or the regulations issued there-
under, search such vessel, or conveyance and arrest such person.’’
{Emphasis added.]
Thus, it is clear that Congress authorized warrantless searches under
the Act, but only if there exists reasonable cause to believe that the vessel
or a person on board is in violation of the Act or regulations.
In the context of search, arrest and forfeiture, the terms ‘reasonable
cause’’ and ‘‘probable cause’’ have traditionally been used inter-
changeably. Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035 (1878);
United States v. 83 Sacks of Wool, Etc., 147 F. 747, 748 (D.Me.1906);
Schnorenberg v. United States, 23 F.2d 38, 39 (7th Cir. 1927); Levine v.
United States, 138 F.2d 627 (2nd Cir. 1943); United States v. Fay, 240
F.Supp. 591, 594 (S.D.N.Y.1965), cert. denied, 384 U.S. 964, 86 S.Ct.
1592, 16 L.Ed.2d 675 (1966).
Defendants admit that the placement of observers on tuna vessels is
without a warrant and without specific probable cause to believe that the
vessel or any person on board is in violation of the Act or regulations.
Since the regulation purports to authorize searches of tuna vessels
without a warrant and without reasonable cause to believe the vessel or a
person on board is in violation of the Act or regulations, it is in direct
contravention of § 1377 of the Act, which requires reasonable cause. A
regulation which contravenes its enabling statute is void. As the Supreme
Court held in striking down a regulation in Manhattan General Equip-
ment Co. vy. Commissioner, 297 U.S. 129, $6 S.Ct. 397, 80 L.Ed. $28
(1936):
“The power of an administrative officer or board to administer a
federal statute and to prescribe rules and regulations to that end ts not
the power to make law —for no such power can be delegated by Con-
gress, but the power to adopt regulations to carry into effect the will of
Congress as expressed by the statute. A regulation which does not do
this, but operates to create a rule out of harmony with the statute is a
mere nullity.’ 297 U.S. at 134, $6S.Ct. at 400.
Defendants and Intervenors seek to avoid this clash between the ex-
press terms of the statute and the regulation. Defendants point to the
fact that § 1377 applies to ‘‘enforcement officers." and that under the
—
S3a
NMFS Field Manual (1981) observers are not enforcement officers. The
mere fact that the observer may not be endowed with arrest authority
does not mean he performs no enforcement function. His gathering of
data for use in civil and criminal proceedings is an important in-
vestigative part of the enforcement function. The fact that it is some
other branch of the NMFS which converts the data into notices of viola-
tion or charges does not immunize the observer's role from the reach of §
1377. If an officer endowed with full enforcement authority is required
under § 1377 to have reasonable cause for a warrantless search, one en-
dowed with only partial enforcement authority can claim no superior
position.
Intervenor points to the fact that § 1377 applies to all vessels subject to
United States jurisdiction under the Act, whether they fish on porpoise
or not. This is true, but provides no basis for excepting vessels which do
fish on porpoise from the blanket provisions of § 1377, which, by their
terms, apply to the entire Act and admit of no exception.
The regulation flies squarely in the face of § 1377 of the Marine Mam-
ma! Protection Act and is void.
Defendants and Intervenors lay heavy stress on the contention that the
observer program is thie only practical means of monitoring compliance
with the Act, and that the use of aircraft or vessels for surveillance would
be cost-inefficient and result in spotty oversight. On the basis of expedi-
ency and the broad powers conferred upon the Seeretary to adopt regula-
tions he deems ‘‘necessary and appropriate,’* they urge the Court to find
in the Act implied authority for the Secretary's regulation. Of course,
such authority cannot !x¢ implied if it contravenes the express language of
the statute.
Assuming arguendo that § 1377 did not act as a bar to such an implica-
tion of authority, there are other reasons why that power cannot be im-
plied. The Court cannot imply the authority in an administrator to
define and delineate the scope of his own search authority. As pointed
out by the Supreme Court in United States v. United States District
Court, 407 U.S. 297, 316, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752 (1972),
the executive officer is not a neutral and detached magistrate, but the en-
forcer of the law.
**But those charged with this investigation and prosecutorial duty
should not be the sole judges of when to utilize constitutionally sen-
sitive means in pursuing their tasks.”’
54a
[6] It follows that the Court should not imply authority in the ad-
ministrator to determine whether he may search without a warrant and
without probable cause.
Finally, Defendants argue that an agency interpretation of its enabling
statute is entitled to great weight and that Congress has ratified that in-
terpretation by failure to object and by renewing appropriations under
the Act. The Supreme Court has indicated in Zuber v. Allen, 396 U.S.
168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345 (1969), and S.E.C. v. Sloan,
436 U.S. 103, 120, 98 S.Ct. 1702, 1713, 56 L.Ed.2d 148 (1978), that an
agency interpretation is but one ingredient of the interpretational equa-
tion, and that it has greatest weight when the agency participated in draf-
ting the statute and made its interpretation known to Congress at that
time. Here there is no contention that the agency interpretation was
made known to Congress at the time the statute was adopted in 1972. In
fact, the first time the agency issued notices of violations based upon
observer data was in August 1977, long after the passage of the Act. In
S.E.C. v. Sloan, 436 U.S. 103, 120, 98 S.Ct. 1702, 1713, 56 L.Ed.2d 148
(1978), the Supreme Court struck down an agency practice of 34 years’
standing even though the Senate committee charged with the oversight of
the S.E.C. knew of and specifically endorsed the practice. Also, in
Zuber v. Allen, 396 U.S. 168, 193, 90 S.Ct. 314, 328, 24 L.Ed.2d 345
(1969), the Court invalidated an agency interpretation of many years’
duration despite an intervening re-enactment. See, also, TVA v. Hill,
437 U.S. 153, 193, 98 S.Ct. 2279, 2301, 57 L.Ed.2d 117 (1978).
The Court is impressed, too, with the fact that in 1977 the Secretary
proposed an amendment to the Act which would have made explicit his
authority to use observer data for enforcement purposes. The amend-
ment, while approved by the House, was never taken up by the Senate.
See, Hearings before the Committee on Merchant Marine and Fisheries,
House of Representatives, 95th Congress, First Session, May 1977, Serial
No. 95-3, pp. 35, 109. The post-enactment legislative history does not
support the contention that Congress ‘‘ratified’’ the Secretary’s inter-
pretation of the Act.
{7} In any event, there is a superseding principle which operates here,
making implied authority and ratification irrelevant. A considerable
body of case law holds that where agency action affects substantial con-
stitutional rights, or is of questionable constitutionality, an explicit con-
gressional authorization is required rather than implication or acquies-
cence. See, e.g., Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3
5Sa
L.Ed.2d 1377 (1959); Kent v. Dulles, 357 U.S. 116, 131, 78 S.Ct. 1113,
1121, 2 L.Ed.2d 1204 (1958); Schneider v. Smith, 390 U.S. 17, 26, 88
S.Ct. 682, 687, 19 L.Ed.2d 799 (1968); see, also, S.E.C. v. Sloan, 436
U.S. 103, 112, 98 S.Ct. 1702, 1708, 56 L.Ed.2d 148 (1978). As the
Supreme Court stated in Greene v. McElroy:
‘“*If acquiescence or implied ratification were enough to show delega-
tion of authority to take actions within the area of questionable consti-
tutionality, we might agree with respondents that delegation has been
shown here... Such decisions cannot be assumed by acquiescence or
non-action. [Citations omitted.] They must be made explicitly not
only to assure that individuals are not deprived of cherished rights
under procedures not actually authorized, . . ., but also because ex-
plicit action, especially in areas of doubtful constitutionality, requires
careful and purposeful consideration by those responsible for enacting
and implementing our laws. Without explicit action by lawmakers,
decisions of great constitutional import and effect would be relegated
by default to administrators who, under our system of government,
are not endowed with authority to decide them.’’ 360 U.S. at 506,
507, 79 S.Ct. at 1418, 1419.
For all of these reasons the Court is persuaded that the Secretary has
neither express nor implied authority to adopt the regulation, and it is
void.
The very facts which render the regulation invalid under the statute
also render it a violation of the Fourth Amendment.
{8,9} A warrantless search is per se unreasonable unless it falls within
one of the recognized narrow exceptions to the warrant requirement.
Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727,
1730-31, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 543,
87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967); Marshall v. Barlow’s, Inc.,
436 U.S. 307, 312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978); Michigan
v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978).
The only exception urged by Defendants is the ‘‘pervasively regulated in-
dustry’’ exception carved out and elaborated upon by the Supreme Court
in three cases: Colonnade Catering Corp. v. United States, 397 U.S. 72,
90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Biswell, 406 U.S.
311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); and Marshall v. Barlow’s, Inc.,
436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).
56a
Careful analysis of these cases, as well as lower court decisions follow-
ing in their wake, indicates that the minimum requirements of the excep-
tion are (1) an industry which has been subject to historical or pervasive
federal regulation such that warrantless inspection is both necessary and
to be anticipated, and (2) a statute explicitly authorizing the warrantless
inspection. As the Court states in Biswell:
‘*In the context of a regulatory inspection system of business premises
that is carefully limited in time, place and scope, the legality of the
search depends not on consent but on the authority of a valid statute.”’
406 U.S. at 315, 92 S.Ct. at 1596.
The parties have cited, and the Court is aware of, no case which has
upheld a warrantless regulatory administrative inspection in the absence
of an express statutory authorization for such inspection. The rationale
for this requirement of an express statute is undoubtedly to be found in
the statement previously quoted from United States v. United States
District Court, 407 U.S. 297, 316, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752
(1972), regarding the traditional role of the detached and impartial
magistrate in the issuance of a warrant, i. e., the magistrate assures that
there is probable cause for the search and that the scope of the search is
appropriately limited in time, place and scope. As the Court points out,
an administrator cannot fulfill these traditional functions of the
magistrate since he, himself, is the searcher. Congress, however, being
elected by and responsive to the people, and presumably sensitive to their
constitutional rights, comes closer to fulfilling the role of the magistrate
than any administratoi can. Accordingly, a properly drawn statute in
appropriate cases may substitute for the warrant. See, United States v.
Cooper, 409 F.Supp. 364, 368 (M.D., Fla.1976), aff’d., 542 F.2d 1171
(Sth Cir. 1976). While the courts remain the ultimate arbiters of the rea-
sonableness of a search even where authorized by Congress, Marshall v.
Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978);
United States v. Piner, 608 F.2d 358 (9th Cir. 1979); United States v.
Taylor, 488 F.Supp. 475 (D.Or.1980), on the whole, deference has been
shown to the congressional determination of the standard of reasonable-
ness. Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct.
774, 25 L.Ed.2d 60 (1970).
{10} Viewing the regulation in the light of these principles, the Court
finds that, insofar as it purports to allow a warrantless search without
reasonable cause, it is not expressly authorized by the statute. Accord-
ingly, the ‘‘pervasively regulated industry’’ exception to the warrant
57a
requirement is inapplicable, and the search is therefore in violation of the
Fourth Amendment.
{11, 12] The Defendants and Intervenors, finally, seek to justify the
regulation as within the broad authority of the Secretary under § 1374 to
issue permits authorizing the incidental taking of mammals with ‘‘any
ether terms or conditions which the Secretary deems appropriate.’’ The
argument is that since the Secretary may prohibit fishing on porpoise
altogether, he may permit it subject to the condition of compliance with
the regulation. But, inasmuch as the regulation is invalid under the
statute and the Constitution, the Secretary certainly may not condition
the grant of a permit upon compliance with an invalid regulation. This
would permit him to do indirectly what he cannot do directly. Also, a
long line of respectable authority stands for the proposition that the
government may not condition a privilege (especially to pursue one’s
livelihood) upon compliance with an unconstitutional requirement. Frost
v. Railroad Commission, 271 U.S. 583, 593, 46 S.Ct. 605, 607, 70 L.Ed.
1101 (1926); United States v. Chicago Milwaukee, Etc. R. R., 282 U.S.
311, 328, 51 S.Ct. 159, 163, 75 L.Ed. 359 (1931); Standard Airlines v.
Civil Aeronautics Board, 177 F.2d 18 (D.C.Cir.1949); Smyth v. Lubbers,
398 F.Supp. 777 (W.D. Mich.1975).
The Court therefore concludes that the regulation contravenes both
the Marine Mammal Protection Act and the Fourth Amendment of the
Constitution and is invalid. If indeed the Secretary believes he has not
been given the tools to carry out his assigned responsibilities, the ap-
propriate remedy is to petition Congress, and not to ask the Court to
rewrite the language of the statute or the Constitution. See, e. g., TVA
v. Hill, 437 U.S. 153, 195-195, 98 S.Ct. 2279, 2301-2302, §7 L.Ed.2d 117
(1978). The protection of marine mammals from careless depredation is
an important societal value as manifested by the Marine Mammal Pro-
tection Act, but it cannot be furthered by the violation of the Fourth
Amendment rights of fishermen. The observer program as implemented
by the regulation is an extraordinarily intrusive invasion of privacy, en-
tailing the compelled 24-hour a day presence of government agents on
Plaintiffs’ vessels for two to three months at a time. Whether Congress
could constitutionally impose such a program on tuna vessels under the
Act is not before the Court, and no opinion on that subject is expressed
here. If such a constitutionally sensitive program is to be adopted,
however, that choice must be clearly made and declared by Congress,
and not by the administrator.
58a
ORDER
The Court declares:
1. That the regulation, 50 C.F.R. 216.24(f), insofar as it allows
observers to gathery data and information for use in civil or criminal
penalty proceedings, forfeiture actions, or permit or certificate sanctions
is invalid and void.
2. The Court permanently enjoins Defendants, their successors,
agents, employees and anyone acting on their behalf from using
observer-gathered data or information under the regulation, or its fruits,
for civil or criminal penalty proceedings, forfeiture actions, permits or
certificate sanctions, or for anv purpose except scientific research.
3. The Court permanently enjoins Defendants their successors,
agents. employees and anyone acting on their behalf from requiring
Plaintiffs, as a condition to the granting of permits or certificates of in-
clusion to fish for tuna in association with porpoise, to accept the on-
board presence of observers whose information or data may be used for
any purpose except scientific research.
59a
JUDGMENT
United States Court of Appeals__ =
. . amet STEREO
FOR THE NINTH CIRCUIT ) S@:32883,
Es 8221 Wis
C.ERK US DISTRICT COURT
SOUT ITN DIPPRIOT OF CALIFORNY '
ESR Huis
JOHN R. BALELO, ANDREW CASTAGNOLA,
LEO CORREIA, MANUEL S. JORGE, BRYAN R.
MADRUGA, et al.,
Plaintitts-Appellees,
v. | Nos. 81-5806
} & 81-5807
MALCOLM BALDRIGE, Secretary of Commerce |
of the United States, et al., | |
Defendants-Appellants, lev
ENVIRONMENTAL DEFENSE FUND, INC., et al., ‘|
Intervenor-Defendants-Appellants. }
80. 1646-GT
APPEAL trom the United States District Court for the SOUTHERN
District of CALIFORNIA
THIS CAUSE came on to be heard on the Transcript of the Record
from the United States District Court for the SOUTHERN District of
CALIFORNIA and was duly submitted.
ON CONSIDERATION WHEREOF, It is now here ordered and ad-
judged by this Court, that the judgment of the said District Court in this
Cause be, and hereby is REVERSED & REMANDED.
A TRIE CO
see
Clerk cua, /D
an 7a ae
© ee we es
Filed and entered JANUARY 24, 1984
60a
UNITED STATES CONSTITUTION,
FOURTH AMENDMENT
Art. IV. The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not
be violated; and no warrants shall issue, but upon probable cause, sup-
ported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
UNITED STATES CODE, TITLE 16
§ 1377. Enforcement
(a) Utilization of personnel
Except as otherwise provided in this subchapter, the Secretary shall en-
force the provisions of this subchapter. The Secretary may utilize, by
agreement, the personnel, services, and facilities of any other Federal
agency for purposes of enforcing this subchapter.
(b) State officers and employees
The Secretary may also designate officers and employees of any State
or of any possession of the United States to enforce the provisions of this
subchapter. When so designated, such officers and employees are
authorized to function as Federal law enforcement agents for these pur-
poses, but they shall not be held and considered as employees of the
United States for the purposes of any laws administered by the Director
of the Office of Personnel Management.
(c) Warrants and other process for enforcement
The judges of the district courts of the United States and the United
States magistrates may, within their respective jurisdictions, upon proper
oath or affirmation showing probable cause, issue such warrants or other
process, including warrants or other process issued in admiralty pro-
ceedings in United States district courts, as may be required for enforce-
ment of this subchapter and any regulations issued thereunder.
6la
(d) Execution of process; arrest; search; seizure
Any person authorized by the Secretary to enforce this subchapter may
execute any warrant or process issued by any officer or court of compe-
tent jurisdiction for the enforcement of this subchapter. Such a person
so authorized may, in addition to any other authority conferred by law —
(1) with or without warrant or other process, arrest any person com-
‘ mitting in his presence or view a violation of this subchapter or the
regulations issued thereunder;
(2) with a warrant or other process, or without a warrant if he has
reasonable cause to believe that a vessel or other conveyance subject to
the jurisdiction of the United States or any person on board is in viola-
tion of any provision of this subchapter or the regulations ..sued
thereunder, search such vessel or convevance and arrest such person;
(4) seize the cargo of any vessel or other convevance subject to the
jurisdiction of the United States used or employed contrary to the pro-
Visions of this subchapter or the regulations issued hereunder or which
reasonably appears to have been so used or employed; and
(4) seize, whenever and wherever found, all marine mammals and
marine mammals products taken or retained in violation of this sub-
chapter or the regulations issued thereunder and shall dispose of them,
in accordance with regulations prescribed by the Secretary.
(e) Disposition of seized cargo
(1) Whenever any cargo or marine mammal or marine mammal pro-
duct is seized pursuant to this section, the Secretary shall expedite any
proceedings commenced under section 137S(a) or (b) of this title. All
marine mammal or marine mammal products or other cargo so seized
shall be held by any person authorized by the Secretary pending disposi-
tion of such proceedings. The owner or consignee of any such marine
mammal or marine mammal product or other cargo so seized shall, as
soon as practicable following such seizure, be notified of that fact in ac-
cordance with regulations established by the Secretary.
(2) The Secretary may, with respect to any proceeding under section
137S(a) or (b) of this title, in lieu of holding any marine mammal or
marine mammal product or other cargo, permit the person concerned to
post bond or other surety satisfactory to the Secretary pending the
disposition of such proceeding.
(3A) Upon the assessment of a penalty pursuant to section 1375(a) of
this title, all marine mammals and marine mammal products or other
cargo seized in connection therewith may be proceeded against in any
62a
court of competent jurisdiction and forfeited to the Secretary for disposi-
tion by him in such manner as he deems appropriate.
(B) Upon conviction for violation of section 1375(b) of this title, all
marine mammals and marine mammal products seized in connection
therewith shall be forfeited to the Secretary for disposition by him in
such manner as he deems appropriate. Any other property or item so
seized may, at the discretion of the court, be forfeited to the United
States or otherwise disposed of.
(4) If with respect to any marine mammal or marine mammal product
or other cargo so seized—
(A) a civil penalty is assessed under section 137S(a) of this title and
no judicial action is commenced to obtain the forfeiture of such mam-
mal or product within thirty days after such assessment, such marine
f mammal or marine mammal product or other cargo shall be im-
mediately returned to the owner or the consignee; or
(B) no conviction results from an alleged violation of section
1375(b) of this title, such marine mamma! or marine mammal product
or other cargo shall immediately be returned to the ow ner Or consignee
if the Secretary does not, with thirty days after the final disposition of
the case involving such alleged violation, commence proceedings for
the assessment of a civil penalty under section 137S(a) of this title.
§ 1381. Commercial fisheries gear development
(a) Research and development program; report to Congress;
authorization of appropriations
The Secretary of the department in which the National Oceanic and
Atmospheric Administration is Operating (hereafter referred to in this
section as the ‘*Secretary’’) is hereby authorized and directed to im-
mediately undertake a program of research and development for the pur-
pose of devising improved fishing methods and gear So as to reduce to the
maximum extent practicable the incidental taking of marine mammals in
connection with commercial fishing. At the end of the full twenty-four
calendar month period following October 21, 1972, the Secretary shall
deliver his report in writing to the Congress with respect to the results of
such research and development. For the purposes of this section, there is
hereby authorized to be appropriated the sum of $1,000,000 for the fiscal
So in original. Probably should be ‘“‘within"’.
63a
year ending June 30, 1973, and the same amount for the next fiscal year.
Funds appropriated for this section shall remain available until expend-
ed.
(b) Reduction of level of taking of marine mammals incidental to
commercial fishing operations
The Secretary, after consultation with the Marine Mammal Commis-
sion, is authorized and directed to issue, as soon as practicable, such
regulations, covering the twenty-four-month period referred to in section
1371(ay(2) of this title, as he deems necessary or advisable, ot reduce to
the lowest practicable level the taking of marine mammals incidental to
commercial fishing operations, Such regulations shall be adopted pur-
suant to section $53 of title $. In issuing such regulations, the Secretary
Shall take into account the results of any scientific research under subsec-
tion (a) of this section and, in each case, shall provide a reasonable time
not exceeding four months tor the persons affected to implement such
regulations.
(¢) Reduction of level of taking of marine mammals in tuna fishery
Additionally, the Secretary and Secretary of State are directed to com-
mence negotiations within the Inter-American Tropical Tuna Commis-
sion in order to effect essential compliance with the regulatory provisions
of this chapter so as to reduce to the maximum extent feasible the in-
cidental taking of marine mammals by vessels involved in the tuna
fishery. The Secretary and Secretary of State are further directed to re-
quest the Director of Investigations of the Inter-American Tropical Tuna
Commission to make recommendations to all member nations of the
Commission as soon as is practicable as to the utilization of methods and
gear devised under subsection (a) of this section.
(d) Research and observation
Furthermore, after timely notice and during the period of research
provided in this section, duly authorized agents of the Secretary are
hereby empowered to board and to accompany any commercial fishing
vessel documented under the laws of the United States, there being space
available, on a regular fishing trip for the purpose of conducting research
or observing operations in regard to the development of improved fishing
methods and gear as authorized by this section. Such research and obser-
vation shall be carried out in such manner as to minimize interference
64a
with fishing operations. The Secretary shall provide for the cost of
quartering and maintaining such agents. No master, operator, or owner
of such a vessel shall impair or in any way interfere with the research or
observation being carried out by agents of the Secretary pursuant to this
section,
50 C.F.R. § 216.24(f)
(f) Observers—(1) The vessel certificate holder of any certificated
vessel shall, upon the proper notification by the National Marine
Fisheries Service, allow an observer duly authorized by the Secretary to
accompany the vessel on any or all regular fishing trips for the purpose of
conducting research and observing operations, including collecting infor-
mation which may be used in civil or criminal penalty proceedings,
forfeiture actions, or permit or certificate sanctions.
(2) Research and observation duties shall be carried out in such a man-
ner as to minimize interference with commercial fishing operations. The
navigator shall provide true vessel locations by latitude and longitude,
accurate to the nearest minute, upon request by the observer. No owner,
master, Operator, or crew member of a certificated vessel shall impair or
in any way interfere with the research or observations being carried out.
(3) Marine mammals killed during fishing operations which are ac-
cessible to crewmen and requested from the certificate holder or master
by the observer shall be brought aboard the vessel and retained for
biological processing, until released by the observer for return to the
ocean, Whole marine mammals designated as biological specimens by
the observer shall be retained in cold storage aboard the vessel until
retrieved by authorized personnel of the National Marine Fisheries Ser-
vice when the vessel returns to port for unloading.
(4) The Secretary shall provide for the payment of all reasonable costs
directly related to the quartering and maintaining of such observers on
board such vessels. A vessel certificate holder who has been notified that
the vessel is required to carry an observer, via certified letter from the
National Marine Fisheries Service, shall notify the office from which the
letter was received at least five days in advance of the fishing voyage to
facilitate observer placement. A vessel certificate holder who has failed
to comply with the provisions of this section may not engage in fishing
operations for which a general permit is required.
(5) It is unlawful for any person to forcibly assault, impede, in-
timidate, interfere with, influence or attempt to influence an observer
placed aboard a vessel.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.