Amicus Curiae Brief — Japan Whaling Ass'n v. American Cetacean Society

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Nos. 85-954 and 85-955) Josces F. SPANIOL,

FOR ARGUMENT -\ ‘)

gn the Supreme Court of the Wnited States

OctToBEerR TERM, 1985

JAPAN WHALING ASSOCIATION, FT AL., PETITIONERS,

v.

AMERICAN CETACEAN SOCIETY, ET AL., RESPONDENTS

MALCOLM BALDRIGE, ET AL., PETITIONERS,

v.

AMERICAN CETACEAN SOCIETY, ET AL., RESPONDENTS

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE SPEAKER AND BIPARTISAN LEADERSHIP GROUP

OF THE HOUSE OF REPRESENTATIVES AS AMICI CURIAE

STEVEN R. ROSS,*

General Counsel to the Clerk,

BOP es Counsel to the Clerk,

eh ssistant re, to the Clerk,

\" JANINA JARUZELSKI,

Assistant Counsel to the Clerk,

U.S. House of Representatives,

The Capitol, H-105,

Washington, D.C. 20515.

(202) 225-9700

Attorneys for Speaker and Bipartisan

Leadership Group.

* Counsel of Record

March 29, 1986

QUESTIONS PRESENTED

1. Does the political question doctrine preclude judicial

enforcement of a statutory requirement imposed upon the

Secretary of Commerce, an executive branch official, in

an area which may affect on foreign relations?

2. Where a congressional enactment may have some

impact on international relations, is it improper for a

court to consider a statute's legislative history in deter-

mining Congressional intent?

CONTENTS

I sce evcsverecsnsscnssensssevesvessssasenseostovsess

Se II bnccccssaccvencsnssnsessssesesssscessecsecseveessess

I. THE EXECUTIVE BRANCH IS BOUND BY THE

DULY ENACTED LAWS OF THE UNITED

STATES AND THE COURT HAS BOTH THE

RIGHT AND THE DUTY TO INTERPRET AND

EN

1. Under the Constitution, Congress Makes Policy in

the Foreign Comimerce Areg ...............0s..sssscsssssssssssesees

2. This Case is Justiciable Under Baker v. Carr and

3. Speculative Possibilities of ‘““Embarrassment”’ Do

Not Negate the Justiciability of This Suit or Avoid

the Remedy of Mandamus ...............::..:cccss0sscesesseeeseeeees

ll. THE RULES OF STATUTORY CONSTRUCTION

SHOULD NOT BE CONTINGENT UPON

WHETHER THE STATUTE INVOLVED IS CON-

SIDERED TO CONCERN “DOMESTIC” OR ‘“‘FOR-

a deucvevassensosons

CONCLUSION .................. 0 EEE SEIS ERTE poo CTO OOD

TABLE OF AUTHORITIES

Cases:

American Cetacean Society v. Baldrige, 728 F.2d 426

Ts cesubonssstaauesbaceozonss

(inl)

1]

14

16

IV

Page

Cases—Continued

Ameron, Inc. v. U.S. Army Corps of Engineers, 607 F.

Supp. 962 and 610 F. Supp. 750 (D.N.J. 1985), ap-

peals argued, Nos. 85-5226, 85-5377 (3d Cir. Oct.

ARR Rirrecee en a crane ese ee Re En OOO 3

Baker v. Carr, 369 U.S. 186 (1962)... 9,11, 12

Brolan v. United States, 236 U.S. 216 (1915).......00000.. 11

Buttfield v. Stranahan, 192 U.S. 470 (1904)... 10

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)......... al

Coleman v. Miller, 307 U.S. 433 (1939)... 11

Dames & Moore v. Regan, 453 U.S. 654 (1981)....... 13, 14, 17

Goldwater v. Carter, 444 U.S. 996 (1979) ........ccccccceeeeees 9

In re Benny, 44 Bankr. 581 (N.D. Cal. 1984), appeal

argued, No. 84-2805 (9th Cir. July 10, 1985).............. 3

Japan Line, Ltd. v. County of Los Angeles, 441 U.S.

Sri ee hcisiteiuiasitadiitcassiinsinhahbiectiidsmtoiimacidnamapeicnasnnebiteididanitiapbie ,1l

Kendall v. United States ex rel. Stokes, 37 U.S. (12

Se Gat ickcacussicihihesiniiinicenceiscnndomniatienidsindidlainidaadanadion 10

Lear Siegler, Inc. v. Lehman, No. CV 85-1125-KN

ce Rs BR: Ss. Se ncccnniicbeectcinicevnstcindenencnneiienbiscnstanances 3

License Cases, 46 U.S. (5 How.) 504 (1847)... 11

Lottery Case, 188 U.S. 321 (19038)..............ccccsccessesssssscsses 1]

Pittsburgh & Southern Coal Co. v. Bates, 156 U.S.

SP TI viheihisistcsicacthdhientcscsseiabittadachbadeatianiashbbdeinnduaiiniitiiainies 10

Regan v. Wald, 468 U.S. 222 (1984) 0.0.0.0... cecceeeeeeeeeeeees 7

Swearington v. United States, 565 F. Supp. 1019 (D.

ER: SI tehiesdicisisctdcicanctbissnancecenascectieaninebectebadaaeasaaidanialaiiiiens 14

Synar v. United States, No. 85-3945 (D.D.C. Feb. 7,

1986), appeal pending sub nom. Bowsher v. Synar,

Nos. 85-1377, 85-1378, 85-1379 (U.S. oral arg.

ES GOR: Tie, ee sti tetctcteerenioncnesmniintnrenimanininnns 3

The Abbey Dodge, 223 U.S. 166 (1912) ........ceecceeeeteeees 11

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979)... 16

United States ex. rel. Joseph v. Cannon, 642 F.2d

1373 (D.C. Cir. 1981), cert. denied, 455 U.S. 999

SUI cicsses:siiciscinsestahialsecsabpestadesdietaniehiniasiassinanenbintdlansaiatiiaabsecaneetnies 12

United States v. Apfelbaum, 445 U.S. 115 (1980).......... 16

United States v. Curtiss-Wright Export Corp., 299

Ba, Gee Se ciscocaniiakenhectanienanacicciiadianbiieacscssennitetimmmmaionaginn 13

United States v. Guy W. Capps, Inc., 204 F.2d 655

(4th Cir. 1953), aff'd, 348 U.S. 296 (1955)... 15

Page

Cases—Continued

Weber v. Freed, 239 U.S. 325 (1915) coccccccccccccccccccecceceeceee. 11

Whitehouse V. Illinois Central R.R. Co., 349 U 3. 366

AAA: ee =| 14

Youngstown Sheet & Tube Co. v. Sawyer, 343 US.

TENS BoP ae 10, 13, 14

United States Constitution, Statutes and Rules:

i Ig NS MO I a ccncececsstctmenmnenmemesecereeseeces 4, 10

I Ug 10

a ee, roe ee 4

16 U.S.C. § 1821(e 2) (1982) oo ccceccccccccceccceccceceecececee.. passim

Be MN TY UII, sc cssonicesccncnewnsooncosseasoniudaseesicicces. passim

SN HE I insincere eacdceanmatanessomseonceciccvoesiel 4

_ 3, __” ERENT Pea as SE oe nC 3

Legislative Materials:

BZD Cooma. Bee. SHOBS (1G TO) ...n.....cecceccecccccevceccccsossesseceesces 6

ef , eS OS fee 10

Miscellaneous:

Congressional Research Service, The Constitution of

the United States: Analysis and Interpretation

Spal steteiasndstaainieehe-ebblimumdciniececsemekaiesassibodauscdénance, 1]

In the Supreme Court of the Wnited States

OcTroBER TERM, 1985

Nos. 85-954 AND 85-955

JAPAN WHALING ASSOCIATION, ET AL., PETITIONERS,

VU.

AMERICAN CETACEAN SOCIETY, ET AL., RESPONDENTS

MALCOLM BALDRIGE, ET AL., PETITIONERS,

v.

AMERICAN CETACEAN SOCIETY, ET AL., RESPONDENTS

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE SPEAKER AND BIPARTISAN LEADERSHIP GROUP

OF THE HOUSE OF REPRESENTATIVES AS AMICI CURIAE

The Speaker and Bipartisan Leadership Group of the

House of Representatives respectfully submit this brief as

Amici Curiae in support of the respondents’ position that

the decision of the Court below should be affirmed. In an

P) (1)

2

effort to strengthen the schedules and programs of the

International Convention for the Regulation of Whaling

(“ICRW’’), the Congress deemed it appropriate to enact

legislation that would enforce compliance with these oth-

erwise unenforceable international agreements. The re-

sultant statute provides for economic sanctions against

any nation that fails to cooperate with the conservation

measures adopted by the International Whaling Commis-

sion (“IWC’’). At issue here is the failure of the Secretary

of Commerce to impose the statutorily decreed sanction, a

percentage reduction of the noncooperating nation’s fish-

ing allocation within the territorial waters of the United

States.

The Courts below found that pursuant to the Pelly and

Packwood-Magnuson Amendments, 22 U.S.C. § 1978

(1982); 16 U.S.C. § 1821(eX?) (1982), the Secretary of Com-

merce was under a mandatory duty to certify Japan as

having diminished the effectiveness of the ICRW and,

once having certified, was then under an obligation to

impose the fishing allocation reduction sanction provided

for by law. The District Court’s order was stayed pending

appeal and after the Court of Appeals for the District of

Columbia Circuit affirmed the lower court’s decision, this

Court granted certiorari.

The petitioners contend that the decision below errone-

ously interprets the relevant statutory language as de-

priving the Secretary of Commerce of discretionary au-

thority with respect to such certifications. Petitioners fur-

ther contend that it is improper for the judiciary to en-

force, by the issuance of a writ of mandamus, compliance

by executive branch officials with mandatory prescrip-

tions of statutes affecting foreign relations.

INTEREST OF THE AMICI CURIAE

This is a case in which the court below identified “t]he

fundamental question” as “one of statutory interpreta-

tion.” American Cetacean Society v. Baldrige, 768 F.2d

426, 482 (D.C. Cir. 1985). Resolution of the questions pre-

sented to the Court, however, may implicate Constitution-

3

al concerns, the importance of which extend far beyend

the interpretation of this particular statute. The Speaker

and Bipartisan Leadership Group of the United States

House of Representatives (“House amici’’) do not address

the proper reading of the statute. Rather than join in the

debate on statutory interpretation, the House amici

submit their views on two limited, but vitally important,

aspects of the case. These two aspects pose, in the consid-

ered opinion of the House amici, a significant threat to

the vitality of the separation of powers doctrine and to

the future proper functioning of our government. !

The two aspects which demand the attention of tne

House amici are novel theories of separation of powers,

initially voiced by the dissenting member of the panel of

the Court of Appeals and now presented to this Court in-

directly by the Executive and more openly by the Japa-

nese petitioners. The first theory is that the judiciary

should, as a matter of discretion, refuse to entertain legal

actions which seek to mandate executive branch compli-

' Participation by the Speaker and Bipartisan Leadership Group is

the standard mechanism by which the House of Representatives pur-

sues its institutional interests in litigation. See, e.g, Synar v. United

States, No. 85-3945 (D.D.C. Feb. 7, 1986), appeal pending sub nom

Bowsher v. Synar, Nos. 85-1377, 85-1378, 85-1379 (U.S. oral arg. sched-

uled Apr. 23, 1986); Ameron, Inc. v. U.S. Army Corps of Engineers, 60%

F. Supp. 962 and 610 F. Supp. 750 (D.N.J. 1985), appeals argued, Nos

85-5226, 85-5377 (3d Cir. Oct. 29, 1985); Lear Siegler, Inc. v. Lehman.

No. CV 85-1125-KN (C.D. Cal. Nov. 21, 1985); In re Benny, 44 Bankr

581 (N.D. Cal. 1984), appeal argued, No. 84-2805 (9th Cir July 10,

1985). In this filing, Speaker Thomas P. O'Neill, Jr., is joined by Ma-

jority Leader Jim Wright, Republican Leader Robert H. Michel, Major-

ity Whip Thomas S. Foley, and Republican Whip Trent Lott.

In light of the institutional nature of this participation and the

status of the House cf Representatives in the government of the

United States, it would appear appropriate for the Speaker and elect-

ed leadership of the House of Representatives to be permitted to avail!

themselves of the right to submit a brief as amici curiae without the

consent of the parties, in accordance with the provisions of Sup. Ct. R

36.4. In this instance, written consent has, nonetheless, been obtained

and copies of the consent letters have been filed with the Clerk of the

Court.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

Nos. 85-954, 85-955

MALCOLM BALDRIGE, et al.,

- Petitioners,

AMERICAN CETACEAN SOCIETY, et al.,

Respondents.

JAPAN WHALING ASSOCIATION, et al.,

- Petitioners,

AMERICAN CETACEAN SOCIETY, et al.,

Respondents.

On Writs of Certiorari to the United States Court of Appeais

for the District of Columbia Circuit

BRIEF FOR THE RESPONDENTS

COUNTER-STATEMENT OF THE CASE

I. THE MODERN DECIMATION OF THE WORLD’S

GREAT WHALES

A century and a quarter ago, Herman Melville wond-

ered whether, “Leviathan can long endure so wide a

chase, and so remorseless a havoc; whether he must not

at last be exterminated from the waters.”' History

has borne out Melville’s fears. In 1970 the Secretary of

1H. Melville, Moby Dick 491 (Macmillan Co., N.Y. 1962) (1st ed.

1851).

2

the Interior listed eight species of great whales—includ-

ing the sperm whale of Melville’s Moby Dick—under the

Endangered Species Conservation Act, Pub. L. No. 91-

135, 83 Stat. 275 (1969). 35 Fed. Reg. 18,319, 18,320

(1970) .?

The destruction of the great whales is an event of our

age. The masthead lookouts of Melville’s day have been

replaced by scnar and helicopters, the oared longboats

with high-powered catcher ships.* The reproductive abili-

ties of the whales, however, remain fixed to a slower bio-

logical clock. A female sperm whale evidently can bear

one calf every three years; the calf, if it survives, may

not reach breeding status itself for ten to thirty years.‘

The slow reproductive and growth rates of the whales,

and the increased killing capabilities of Twentieth Cen-

tury whaling ships, combined in a predictably tragic

fashion. The blue whale, the largest animal known to

evolutionary history, merely thirty years ago was thought

capable of sustaining an annual catch of about 1,200

animals. Today, scientists believe there are so few of

these creatures that males and females may not be able

to find each other across the vastness of the oceans.°

The right whale, so named because its slow swimming

2 The term “great whales” is often used to describe the ten

largest species of the order Cetacea that have been, or are now,

commercially hunted. Most species are classified as “baleen” whales

because of the large plates of baleen (or “whalebone”) through

which the animals filter their diet of small, shrimp-like crustaceans

and other small marine organisms; only one of the great whales,

the sperm whale, is a toothed whale. See S. McVay, The Last of

the Great Whales, 215 Scientific American 13, 14-15 (1966).

8 See generally, J. Tonnessen, A. Johnsen, The History of Modern

Whaling 609-37 (1982); Scarff, The International Management of

Whales, Dolphins and Porpoises: An Interdisciplinary Assessment,

(Part One) 6 Ecology L.Q. 323, 359 & nn.175 & 176 (1977).

4 Scarff, supra, n.3, at 335 & 337.

5G. Small, The Blue Whale, 70-71 (1970).

==

3

once made it the “right” whale to kill, has had to be

protected by a complete moratorium since 1940. Most of

its scattered groups have not appreciably increased for

the past forty years.°®

Il. THE INTERNATIONAL EFFORT TO REGULATE

WHALING

The International Convention for the Regulation of

Whaling (“ICRW” or “Convention’”’), which created the

International Whaling Commission (“IWC”), was signed

in 1946 and entered into force o1 November 10, 1948.

In its early years, the IWC served as little more than

a cartel to stabilize whale oil prices (J.A. 150).7 This

was accomplished in the 1950’s and 1960’s through the

establishment of overall yearly quotas, expressed in terms

of “blué whale units,” which allowed member nations to

kill freely whichever species they chose. See 62 Stat.

1716, 1724 (1946). The result was biological disaster.

Yet, despite repeated warnings from scientists during

these decades that whale populations had reached dan-

gerously low levels,* the IWC was paralyzed. When con-

servation amendments were adopted, the amendments had

no sanctions. Resistant members could file objections,’

6 Jd. at 3-4; NOAA, 46 Marine Fisheries Review, No. 4 at 43

(1984).

7“J.A.” and “A.A.” refer to the Joint Appendix and the Appellees’

Appendix filed in the Court of Appeals, copies of which have been

lodged with the Clerk of this Court. “Pet. App.” refers to the

appendix to the petition for certiorari in No. 85-955. “Fed. Br.”

refers to the brief filed in No. 85-955 by the Federal Petitioners.

“J.W.A. Br.” refers to the brief filed in No. 85-954 by the Japan

Whaling Association, Petitioners.

8 See, e.g., N. Mackintosh, The Stocks of Whales 180 (1965);

Scarff, supra n.3, at 358-66.

®In 1964, the IWC voted to protect the blue whale in the

Antarctic. Japan objected. Other nations followed its lead. Scarff,

supra n.3, at 364. The protection effort collapsed. :

4

or even withdraw temporarily from the Convention, with

impunity.*®

It was not until the early 1970’s that the IWC began

to shift toward quotas for individual species and abolished

the blue-whale-unit system. Circular Communications to

All Contracting Governments, Oct. 5, 1972, 23 U.S.T.

2820. By that time several species of the world’s largest

whales, including the blue and humpback whales, had

been driven to “commercial extinction’”—their numbers

so decimated by unrestrained slaughter that it was no

longer economical to hunt for them (J.A. 148, 127).

III. THE DETERMINATION OF THE U.S. CONGRESS

TO SUPPORT IWC QUOTAS—THE PELLY AND

PACKWOOD-MAGNUSON AMENDMENTS

The Congress of the United States was in the fore-

front of the drive for effective whale conservation through

the instrumentality of the Convention. At the outset, it

authorized and established the principles governing United

States participation in the Convention, and provided for

the appointment of the Commissioner. Whaling Conven-

tion Act, 48 Stat. 2090, 16 U.S.C. § 916 et seg. (Aug. 9,

1950). In 1971, both the House and the Senate passed

resolutions calling for an international whaling mora-

torium. S.J. Res. 115, 92nd Cong. 1st Sess. (1971);

H.Con. Res. 387, 92d Cong., lst Sess. (1971). See 117

Cong. Rec. 38,537-40 (1971). And in reaction to the

devastation of the great whales—and to the collapse of

the Atlantic salmon—Congress also adopted the 1971

Pelly Amendment to the Fishermen’s Protective Act, 22

U.S.C. § 1978. Congress’ intent was plain from the be-

ginning. It was determined to put teeth into the inter-

national control of whaling through the Convention proc-

ess; it explicitly rejected the methods of bilateral diplo-

macy, with their traditional tradeoffs and compromises.

10 Japan withdrew temporarily from the Convention in 1959 over

quota disagreements. Scarff, supra n.3, at 361 & n.i96.

= ————

a

5

Under Pelly, so far as the record of congressional un-

derstanding shows, from 1971 to 1979 every country

which violated whale quotas set by the IWC was cer-

tified. In each instance, quota violations were determined

by the Executive Branch to “diminish the effectiveness”

of the International Whaling Convention.

In 1974, the Secretary of Commerce made the first

certifications under the Pelly Amendment (J.A. 168-72).

Both Japan and the Soviet Union had objected, as per-

mitted by the Convention, to an IWC total quota of 5,000

minke whales for the 1973-74 Antarctic season (J.A.

170). When the Soviet Union took 4,000 minke whales

and Japan took 3,713, the Secretary certified that both

countries had acted to “diminish the effectiveness” of the

IWC program. Id. President Ford made clear in his

subsequent message to Congress that a taking of whales

in excess of IWC quotas would bring the Pelly Amend-

ment into play:

Objections to adopted quotas are permitted by the

terms of the Convention. An objecting country is

not legally bound by the quota. Whether or not the

objection is legal, however, does not alter the fact

that exceeding the quotas will dim‘nish the effective-

ness of the program. It constitutes a prima facie

case for application of the Pelly Amendment.

White House Press Release, January 16, 1975 (J.A.

175) (emphasis supplied).

In late 1978, the Secretary of Commerce certified Chile,

Peru and the Republic of Korea for exceeding IWC

quotas. Letter from Secretary of Commerce to the Presi-

dent (Dec. 14, 1978) (J.A. 177-86). None of the three

countries were IWC members at the time. Jd. The

threatened imposition of Pelly Amendment sanctions

brought commitments from all three nations to join the

IWC by the next annual meeting. President’s Report

to Congress on the Certification of Chile, Peru and the

Republic of Korea, at 3 (J.A. 193, 195).

6

Yet Congress was not satisfied. The President had ex-

ercised his discretion in all five cases to withhold the im-

port ban. See 22 U.S.C. § 1978(a) (4). Congress wanted

automatic certification and automatic sanctions. So it

determined to close the loophole in Pelly by the Packwood-

Magnuson Amendment, 16 U.S.C. § 1821(e) (2). Its ob-

ject was bold. It wanted nothing less than to stop whal-

ing in derogation of IWC quotas everywhere in the world.

As the Packwood-Magnuson hearings and debates make

crystal clear, Congress knew what it was doing. It real-

ized it would affect United States relations with other

countries by cutting off the Executive Branch’s ability to

compromise whale conservation in the interest of other

foreign policy concerns. Indeed, this was Congress’

avowed purpose. Packwood-Magnuson was a conscious

decision by the Legislative Branch sharply to limit the

discretion of the Executive in order to ensure the effec-

tiveness and integrity of the Convention process.

The Department of State Authorization Act, Fiscal

Years 1980 and 1981, Pub. L. No. 96-60, § 405, 93 Stat.

395, 403 (1979), was approved on the same day as the

Packwood-Magnuson Amendment, Pub. L. No. 96-61, 93

Stat. 407 (1979). In the first, Congress again asked the

IWC to agree to a “moratorium on the commercial kill-

ing of whales.” 93 Stat. 403. Pub. L. No. 96-60 identi-

fied several foreign countries, including Japan, as of-

ferders against the effort to stop whaling and urged

them to comply voluntarily with the moratorium. 93

Stat. 404.

Packwood-Magnuson was a companion piece to the dec-

laration in Pub. L. No. 96-60. It made clear that there

would be a price to nations which chose not to comply

with IWC quotas—the loss of fishing privileges in the

fishery conservation zone off the coasts of the United

States.

7

IV. THE IWC MORATORIA

Congress acted none too soon. By the 1970’s, it had

become apparent that the long-term effects of earlier

whaling had been even more devastating than antici-

pated, and that too little was known about how—or even

whether—the remaining populations could manage to

survive.”

A. The Sperm Whale Ban

The ominous gaps in man’s knowledge of whale demo-

graphics was most evident in the case of the Western

Division Stock of North Pacific sperm whal s—the very

stock harvested to this day by the Japanese under the

Baldrige-Murazumi agreement at issue here. As early

as 1971, the IWC’s Scientific Committee concluded that

existing population models were flawed and that in fact

the male sperm whale population had fallen to levels at

which there appeared to be “little or no further sur-

plus.” ** In 1976, the Scientific Committee was unable to

establish firm quotas for male sperm whales; ** based on

the fragmentary data that did exist, the IWC adopted

an interim “zero” quota for adult males and allowed a

limited harvest of 763 adult females.’* In 1979, the lack

11]1t became increasingly suspected, for example, that whales

belonging to different stocks and sub-populations of one species

did not interbreed, thereby making the overall number of whales

of one species a crude and misleading measure of reproductive po-

tential. See, e.g., Scarff, supra n.3, at 334-35 and nn.26-28.

1222nd Annual Report, Int’] Whaling Comm’n, Scientific Com-

mittee, Summary and Recommendations to the Commission, Section

B, 17 7, 9 (1972).

18 28th Annual Report, Int’] Whaling Comm’n, Chairman’s Re-

port § 9(ii) (c) (1978).

14 Jbid. These interim quoias stood in marked contrast to the

quotas established only several years earlier: 4,000 males and 6,000

females. See 24th Annual Report, Int’] Whaling Comm’n, Appendix

III, Chairman’s Report { 18 (1974).

8

of validated population models and apparent reductions

in pregnancy rates led to a “zero” quota for females *

and to a proposal, which failed of adoption, for a three-

year moratorium in light of the “scientific uncertainty

and the amount of biological material still remaining to

be analyzed.” *°

In 1981, the IWC finally voted to reduce the quota for

the Western Division Stock of North Pacific sperm whales

from 890 adult males to zero adult males (J.A. 65a). It

also voted to amend the Schedule to provide that no

sperm whales could be taken from the North Pacific

Stock in any future year unless the IWC acted to estab-

lish a quota for that year.”

The vote on these proposals was 25 to one, with Japan

casting the only vote in opposition (J.A. 129).% Japan

then filed its formal objection to the amendment.

B. The General Moratorium

The lacunae in biological information made the deter-

mination of sustainable yields unreliable for other spe-

cies as well.’® Yet, during the 1970’s, the IWC continued

15 30th Report, Int’] Whaling Comm’n, Chairman’s Report { 10.2

(1980).

16 Id. at J 10.

17 Under previous IWC procedure, the absence of a quota for a

particular year ordinarily would mean either that whaling for that

species or stock was unrestricted or that the previous year’s quota

remained in effect.

18 See Review of the 38rd International Whaling Commission

Meeting: Hearing Before the Subcomm. on Human Rights and

International Organizations of the House Comm. on Foreign Affairs,

97th Cong., Ist Sess. 11 (1981).

19 A case in point involved Bryde’s whales. In 1975 the Scientific

Committee drew attention to the critical lack of information on

Bryde’s whales in the North Pacific—a stock now open to Japanese

hunting under the Baldrige-Murazumi exchange. 27th Report,

Int’! Whaling Comm’n, Chairman’s Report { 8 (1976). In 1976 and

9

to permit the taking of species and individual stocks un-

der specific numerical quotas. Although the quotas were

a desperately needed improvement over the disastrous

blue-whale-unit system, there developed a growing con-

cern that even scrupulous adherence to the quotas could

not guarantee the long-term survival of the whales.

At its July 1982 annual meeting, therefore, the IWC

took the supreme, culminating regulatory step. It or-

dered a moratorium on all commercial whaling, which

had been long sought by the Congress, to commence in

1986. A three-year phase-in was allowed, in a major

concession to accommodate the objections of the whaling

nations.” And as a further compromise, Japan was

granted a two-year relief period—for the 1982-1983 and

1983-1984 seasons—from the IWC’s decision in 1981 to

ban sperm whaling in the North Pacific on the Western

Division Stock.

1977, the IWC was forced to set a “zero” quota for Bryde’s whales

in the Southern Hemisphere “pending a satisfactory estimate of

stock size.” 28th Report, Int’l Whaling Comm’n, Chairman’s Report

1 9(i) (d) (1978) ; 29th Report, Int’] Whaling Comm’n, Chairman’s

Report f 11(i) (d) (1979).

20 Dr. John Byrne, the Administrator of NOAA and U.S. Com-

missioner to the IWC at the time, stated that the IWC “went to

considerable lengths to ease the probiems which cessation of whaling

would bring to the whaling nations. Not only was the starting

date set for 1986 (the ’85-’86 Antarctic season), but it was agreed to

review the situation in 1990 to determine whether it is workable.”

8 Marine Mammal News, No. 7, at 2 (July 1982). See United States

Marine Mammal Comm’n, Annual Report to Congress, Calendar

Year 1982, at 24.

*1 The United States Marine Mammal Commission described the

“compromise” nature of Japan’s two-year sperm whaling allocations

in its 1982 Report to Congress, id. at 25; see also Review of the

84th International Whaling Comm’n Meeting, Hearings before the

Subcomm. on Human Rights and Int’l Organizations of the House

Comm. on Foreign Affairs, 96th Cong., 2d Sess. 17-18 (1982)

(committee staff report).

10

The IWC’s moratorium was described by NOAA Ad-

ministrator Byrne as “unmatched in the [IWC’s] his-

tory” and as the “best evidence we could have that

whales will receive that protection we have urged for so

Jong.”

On October 21, 1982, Japan filed its objection to the

moratorium.

V. JAPAN’S DEFIANCE OF THE IWC’S DECISION

AND THE UNITED STATES’ RESPONSE

A. Secretary Baldrige’s Position Prior to November

1984

Japan continued to take sperm whales in the 1982-83

and 1983-84 seasons. Its objection to the original ban

remained in effect. Japan gave every indication of defy-

ing the decision of the international community to desist

from further whaling. Accordingly, on June 28, 1984,

as the 1984-85 sperm whale “season” drew near, Senator

Robert Packwood wrote to Secretary Baldrige seeking

assurances that the Secretary would certify any com-

mercial whaling that occurred after the IWC moratorium

took effect (J.A. 197). Secretary Baldrige responded

that certification would be forthcoming, “since any such

whaling attributable to the policies of a foreign govern-

ment would clearly diminish the effectiveness of the

IWC.” (J.A. 198). Letter from Secretary of Commerce

to Sen. Packwood (July 24, 1984).

B. Mr. Baldrige’s Deal with Japan

The Secretary changed his mind, however, in less than

four months. In the November 13, 1984 Baldrige-Mura-

zumi exchange he agreed not to certify just such a “for-

eign government.” Altogether, his letter constituted a

special license to Japan to kill 1,200 sperm whales from

22 Statement of Hon. John V. Byrne, Review of the 384th IWC

Meeting, supra n.21, at 31-32.

11

the protected Western Division stock between 1984 and

1988, and untold thousands of minke and Bryde’s whales,

all in palpable violation of the IWC decision.”

The step was without precedent. Never before had an

Executive Branch official purported to suspend the op-

eration of Pelly or Packwood-Magnuson as to an ad-

mitted violation of any whaling quota—and certainly not

with respect to the supreme regulatory act of a world-

wide moratorium.

In exchange for the Secretary’s forbearance, Japan

agreed to withdraw its objections—effective 1988—to the

IWC’s 1981 sperm whale ban and 1982 general mora-

torium (Pet. App. 102a-119a). But contrary to petition-

ers’ representations, Japan did not agree to “dismantle

its commercial whaling industry” (Fed. Br. 13). It is

already pressing to ensure that the IWC completes its

reevaluation, as contemplated in the IWC Schedule par.

10(e), by 1990, in the evident hope that the moratorium

on commercial whaling may come to an end and its “in-

dustry” continue. Even as to interim whaling between

1988 and 1990, it is by no means certain that Japan’s

“industry” will be shut down. Within weeks of the

Baldrige-Murazumi agreement, Japan proposed to an

IWC Working Group a new category of sperm and

Bryde’s whaling off its coast that would be called

“coastal subsistence whaling” instead of “commercial”

23 Federal Petitioners’ argument (Fed. Br. 43 n.50) that the

killing of these whales is a “prudent price to pay” has little factual

support. The IWC’s Scientific Committee, so heavily relied on by

petitioners (Fed. Br. at Addendum II), concluded that it was

“unable to agree on what the long term effects” on the sperm whale

population were likely to be. Yet it is precisely such long-term

effects that are of crucial concern to a species listed as endangered

with worldwide extinction. See Respondents’ Motion to Expedite,

85-954, 85-955, Exhibits B & C. It is significant that petitioners

fail to offer even short-term comfort from the Scientific Committee

as to Japan’s killing of 357 Bryde’s and 1,941 minke whales during

each of the 1986 and 1987 seasons.

12

whaling and hence not be covered by either the 1981

sperm whale ban or the 1982 general moratorium. See

Brief in Opposition to Petition for Writ of Certiorari.

Nos. 85-954, -955 at 4 n.2. And Japan may well issue

itself a permit for “scientific” whaling, as it has in the

past, see Scarff, supra n.3, at 356 n.157, and as to which

there is no control under the Convention. Moreover, Sec-

retary Baldrige has already stated that fishing activity

by United States citizens is expected to increase consid-

erably by the end of the decade, displacing foreign fish-

ing in U.S. waters (J.A. 111). Thus, Japan will have

far less to lose from invocation of Packwood-Magnuson in

1988 than it does today.

As the Baldrige-Murazumi agreement was being ne-

gotiated, respondents, a consortium of twelve nonprofit

conservation and animal welfare organizations and one

individual, filed this complaint. On March 5, 1935, the

district court ordered Secretary Baldrige to fulfill his

statutory obligations and to certify Japan (Pet. App. 56a-

84a). On August 6, 1985, the Court of Appeals affirmed

(Pet. App. la-55a).

SUMMARY OF THE ARGUMENT

The controlling issue is whether under the 1979 Pack-

wood-Magnuson Amendment the Secretary of Commerce

may determine that Japan’s refusal to abide by the

IWC’s worldwide moratoria did not diminish the effec-

tiveness of the Whaling Convention.

The plain language of the statute is otherwise; a fla-

grant violation of the IWC’s moratoria, the supreme and

culminating regulation of commercial whaling, must by

definition diminish the Convention’s effectiveness. The

Executive Branch has told the courts that even lesser

quota violations would. Respondent Baldrige himself has

written the author of Packwood-Magnuson that he

agrees.

13

That Amendment was enacted against a background

of administrative practice under the Pelly Amendment

that quota defiance consistently triggered automatic cer-

tification. Congress, in enacting Packwood-Magnuson,

sought and obtained from the Department of Commerce

assurance that such defiance would continue to be certi-

fied as “diminishing the effectiveness of the Convention.”

The central purpose of Packwood-Magnuson was to elim-

inate the loophole in the Pelly Amendment to which the

Executive Branch had regularly resorted to withhold

sanctions from certified countries—not to create a new

loophole. The Executive plea at the time for “some flex-

ibility to respond proportionally to the nature and scope

of the particular offense” was rejected. Respondent Bal-

drige’s contention now that he has discretion to with-

hold sanctions is an effort to confer on himself the very

discretion his predecessor sought and was denied when

Congress passed Packwood-Magnuson. The use of the

phrase “diminish the effectiveness” in other statutes sup-

ports Congress’ intention in Packwood-Magnuson.

The Secretary also suggests, as a fallback, that the

courts should desist from enforcing even an unqualified

congressional mandate if that mandate touches interna-

tional relations. The notion is without precedent, and

ominous in its implication that the Executive Branch can

slip the congressional bridle by making agreements with

other nations.

ARGUMENT

I. SYSTEMATIC DEFIANCE OF THE IWC MORA-

TORIA IS A PER SE DIMINISHMENT

A. The Executive Branch Is Not Above the Law Just

Because Its Action Affects Foreign Affairs

Justice Jackson said that the foreign affairs authority

of the Executive Branch is “at its maximum... [when

done] pursuant to an express or implied authorization

of Congress.” Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 635 (1952) (Jackson, J., concurring). It,

18

enactments affecting foreign affairs are nonjusticiable.

Second, they have suggested that even if such statutes

are justiciable, they should be denied the benefit of the

ordinary rules of statutory construction. The Court

should recognize the pernicious nature of these theories

and the far-reaching harm to our system of government

which could ensue from their acceptance. The House

amici urge the Court to uphold the powers and dignity of

both the Legislature and the Judiciary by categorically

rejecting these novel theories.

Respectfully submitted,

STEVEN R. Ross,

General Counsel to the Clerk.

CHARLES TIEFER,

Deputy General Counsel to the

Clerk.

MICHAEL L. Murray,

Assistant Counsel to the Clerk.

JANINA JARUZELSKI,

Assistant Counsel to the Clerk.

U.S. House of Representatives,

The Capitol, H-105,

Washington, D.C. 20519.

(202) 225-9700.

Attorneys for Speaker and Biparti-

san Leadership Group

March 29, 1986.

O