Amicus Curiae Brief — Lujan v. Defenders of Wildlife
Supreme Court brief1992
Ask Donna
What actually matters in this document.
Text
Supreme Court, 6S
FILED
ste wines AUG 30 199]
OF THE CLERK
———
IN THE
Supreme Court of the United States
OCTOBER TERM, 1991
MANUEL LUJAN, JR., SECRETARY OF THE INTERIOR,
Petitioner,
V.
DEFENDERS OF WILDLIFE, et al.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit
—_—_—_——_
BRIEF OF AMICI CURIAE
AMERICAN ASSOCIATION OF ZOOLOGICAL
PARKS & AQUARIUMS AND
FRIENDS OF THE EARTH
IN SUPPORT OF RESPONDENTS
RONALD J. GREENE
LESTER NURICK
W. HaARDy CALLCOTT *
Marc R. COHEN
KENNETH P. STERN
JAMES LEE Buck II
REBECCA ARBOGAST
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000
Counsel for Amici Curiae
August 30, 1991 * Counsel of Record
a
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........
INTERESTS OF AMICI CURIAE .
SUMMARY OF ARGUMENT
ARGUMENT
l. THE CHALLENGED APPLICATION OF SEC-
TION 7 CANNOT PROPERLY BE CLASSI-
FIED AS “EXTRATERRITORIAL”
Il. THE ENDANGERED SPECIES ACT WAS
ENACTED AGAINST THE BACKGROUND
OF INTERNATIONAL CHOICE-OF-LAW
PRINCIPLES THAT EXTEND THE ACT TO
U.S. ACTIONS AFFECTING SPECIES OUT-
SIDE THE UNITED STATES
A. The Judicially-Created Presumption Against
Extraterritoriality Is Merely an Aid to Stat-
utory Construction ............... Eee ee
. Any Presumption Against Extraterritoriality
Does Not Apply to Environmental Laws in
General or to the Endangered Species Act in
Particular
’. This Court Has Evaluated Each Area of Law
Separately Before Deciding to Presume that
U.S. Laws in that Area Apply Only Within
U.S. Territory
Ill. THE SECRETARY’S OWN REGULATION
ALREADY RECOGNIZES THAT SECTION 7
APPLIES TO U.S. AGENCY ACTION OUT-
SIDE THIS COUNTRY’S TERRITORIAL JU-
RISDICTION
CONCLUSION
il
TABLE OF AUTHORITIES
CASES Page
American Banana Co. v. United Fruit Co., 213 U.S.
BAT (1GOD) ....ccccocosecosscoccceceseesssnseusensneennssnannnnannnn 6
Argentine Republic v. Amerada ‘Hess ‘Shipping
Corp., 488 UB. 438 (10GB). ..ccccccsocesscesonsssusssnesnenens 24
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398
(1964) seavesenvecse sooeseeennesaneenlaennnnnna 6
Benz v. Compania Naviera Hidalgo, S.. mw 353 USS.
138 (1957) ene 6, 20
Blackmer v. United States, 284 U. S. 421 (1982) . 19
Bowen v. Michigan Academy of Family Physicians,
476 U.S. 667 (1986) .... 10
Continental Grain (Australia) Pty. Ltd. v. Pacific
Oilseeds, Inc., 592 a 409 (8th Cir. 1979)... 19
Continental Ore Co. v. Union Carbide & Carbon
Corp., 370 U.S. 690 (1962) cooccccccccececcceeeeccceccccee.. 6,17
Cook v. Tait, 265 U.S. 47 (1924) sae 20
EEOC v. Arabian American Oil Co., 111 8. Ct. 1227
(1991) aneunaaanal cesses. PASSTM
Foley Bros., Inc. v. Filardo, 336 U.S 281 (1949) 9,17
Grunenthal GmbH v. Hotz, 712 F.2d 421 (9th
Cir. 1983) . easel en 7 oaks 19
Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306
C2OTO) <0. .cccccceccccococconsecnmceustinemnseeninndneennannnnnnEEEE 18
Kawakita v. United States, 343 U.S. 717 (1952)... 19
Lauritzen v. Larsen, 345 U.S. 571 (1953) 0.0.0.0... 18
McCulloch v. Sociedad Nacional de Marineros,
372 U.S. 10 (1963) raséaeatecnstanaamaanl 6, 20
Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989),
cert. denied, 110 8. Ct. 1112 (1990) _... iio 8
Peter Starr Production Co. v. Twin Continental
Films, Inc., 783 F.2d 1440 (9th Cir. 1986) _..... 18
Psimenos v. E.F. Hutton & Co., 722 F.2d 1041 (2d
CER. RGD nccecesconccescpssccoccennsnennnsnnannnnanannne oh 19
Reid v. Covert, 354 U.S. 1 (1957) ....... . 9
Rust v. Sullivan, 111 8S. Ct. 1759 (1991) .............. 7
Schoenbaum v. Firstbrook, 405 F.2d 215 (2d Cir.
1968), cert. denied, 395 U.S. 906 (1969) 19
SEC v. Banca Della Svizzera Italiana, 92 F.R.D.
RED (EBD. Bc ROBEY cocccccccccccenceceseneee : 19
ill
TABLE OF AUTHORITIES—Continued
SEC v. Certain Unknown Purchasers. 817 F.2d
1018 (2d Cir. 1987). cert. denied, 484 U.S. 1060
(1988) 19
SEC v. Minas de Artemisa, S.A 150 F.2d 215
(9th Cir. 1945) LY
SEC v. Tome, 833 F.2d 1086 (2d Cir. 1987), cert
denied, 486 U.S. 1014 (1988) 19
SEC v. Vaskevitch, 657 F. Supp. 312 (S.D.N.Y
L987) 19
Sedima, S.P.R.L. v. Imre Co., 473 U.S 179
(1985) 10
Societe Nationale Industrielle Aerospatiale v. U.S
District Court, 482 U.S. 522 (1987) 23
South Dakota v. Dole. 4883 U.S. 208 (1987)
Spinde lfaubrik Suessen-Schure v. Schubert & Salze
Maschinfabrik Aktiengesellischaft. 9083 F.2d 1568
(Fed. Cir. 1990) 18
Steele v. Bulova Watch Co., 344 U.S. 280 (1952) 17,18
Tamari v. Bache & Co. (Lebanon) S.A.L 730 F.2d
1108 (7th Cir.). cert. denied. 469 U.S. 871
(1984) 19
Timberlane Lumber Co. v. Bank of American N.T
& S.A., 549 F.2d 597 (9th Cir. 1976), aff'd
after remand, 749 F.2d 1378 (9th Cir. 1984),
cert. denied, 472 U.S. 1082 (1985) 23
Transnor (Bermuda) Ltd. v. BP. N th Ame
Petroleum, 738 F. Supp. 1472 (S.D.N.Y. 1990) 19
Underhill v. Hernands > 168 U.S. 250 ¢ L897 ) 6
United States v. Albertini, 472 U.S. 675 (1985) 1)
United States v. Aluminum Co. of America. 148
F.2d 416 (2d Cir. 1945) 11,17
United States v. Baker. 609 F.2d 184 (Sth Cir
L980) 19
l’nited States v. Bowman. 260 U.S. 94 (1922) 19
l’nited States v. Brown, 549 F.2d 954 (4th Cir.).
cert. denied, 480 U.S. 949 (1977) 19
United States v. Louisiana. 394 U.S. 11 (1969) 24
United States v. Mitchell, 553 F.2d 996 (5th Cir.
1977) 25
iv
TABLE OF AUTHORITIES—Continued
Page
United States v. Romero-Galue, 757 F.2d 1147
(llth Cir. 1985) os = =
United States v. Sisal Sales Corp., 274 U.S. 268
(1927) ; 17
United States v. Smith, 18 U.S. (5 Wheat.) 153
(1820) aah a 19
United States v. Smith, 680 F.2d 255 (1st Cir.
1982), cert. denied, 459 U.S. 1110 (1983) @ 25
United States v. Universal C.1.T. Credit Cor
844 U.S. 218 (1952) 10
United States v. Verdugo-Urquidez, 110 S. Ct. 1056
(1990) .. cae _ 9
United States v. Wright-Barker, 784 F.2d 161 (3d
Cir. 1986) 19, 25
United States v. Yunis, 924 F.2d 1086 (D.C. Cir.
1991) ' 19
Update Art, Inc. v. Modiin Publishing, Ltd., 843
F.2d 67 (2d Cir. 1988) J 18
W.S. Kirkpatrick v. Environmental Tectonics
Corp., 110 8. Ct. 701 (1990) 17
Weinberger v. Rossi, 456 U.S. 25 (1982) 10
Zenith Radio Corp. v. Hazeltine Research Corp..,
895 U.S. 100 (1969) 17
Zoelsch v. Arthur Andersen & Co., 824 F.2d 27
(D.C. Cir. 1987) 19
Statutes
16 U.S.C. § 1531 (a) (4) (1988) 13
16 U.S.C. § 1532(9) (1988) 18
16 U.S.C. § 1536 (a) (2) (1988) 3,4
16 U.S.C. § 1538 (a) (1) (B)- (C) (1988) 16
22 U.S.C. § 262m-2, -4, -5, -7 (1988 & Supp. I
I ciirieneeneeniiltain ee ee 8
22 U.S.C. § 2151b(f) (1) (1988) 8
22 U.S.C. § 2151q (g) (1988) 8
22 U.S.C. § 2779 (c) (1988) 8
50 U.S.C. App. § 2402(5) (a) (1988) 8
Pub. L. No. 101-513, 1990 U.S. Code Cong. &
Admin. News, to be printed at 104 Stat. 1979 8
PABLE OF AUTHORITIES—Continued
50 C.F.R. § 402 (1990) 5
0 C.F.R. § 402.01 (a) (1987) 24
90 CLF.R. § 402.01 (a) (1978) »4
KPA Proposed Rule on Protection of Stratospher
Ozone, 52 F'ed. Reg. 47,489 (1987) (to be cod
fied at 40 C.F.R. pt. 82) (proposed Dec. 14
1QR
| ‘
\vreement ‘ nal! tne . ores ent (,re
Lakes Water Qualit Oct. 16, 1983, United
States-Canada, | A.S. N 10798 LD
Agreement on Great Lakes Water Quality, Apr
15, 1972, United States-Canada, 23 U.S.T. 301]
T.L.A.S. No. 7312 15
Agreement on Great Lakes Water Y lalit N
2? 1978 I'nited States-t nad OL ST. 188
118 U.N.T.S. 348 14
nvention Concerning the Conservation of M
‘atory Birds and their Environment, Nov. 19
197K United States-USSR 9 US. 1647
r.1.AS. No. 9973 14
I n for the Conservation of Atlant
Vi j 966. ?0 U.S J] RT
AS. N 1767, 673 U.N.T.S. 63 !
. . ° } ( nse} tio? f Salmo n the
\ mn Atlantic Ocear r at (jet
ynvention for the Establishment of ian Inter
American Tropical Tuna Commission, May 31
1949, 1 U.S.T. 230, T.LA.S. No. 2044, 80
vi
TABLE OF AUTHORITIES—Continued
Page
Convention for the Protection of Migratory Birds,
Aug. 16, 1916, United States-Great Britain, 39
Stat. 1702, T.S. No. 628 _... ' , 13
Convention for the Protection of Migratory Birds
and Birds in Danger of Extinction, and Their
Environment, Mar. 4, 1972, United States-Japan,
25 U.S.T. 3331, T.1.A.S. No. 7990 14
Convention for the Protection of Migratory Birds
and Game Mammals, Feb. 7, 1936, United
States-Mexico, 50 Stat. 1311, T.S. No. 912 14
Convention on Fishing and Conservation of the
Living Resources of the High Seas, done Apr.
29, 1958, 17 U.S.T. 138, T.1LA.S. No. 5969, 559
U.N.T.S. 285 14
Convention on the High Seas, done Apr. 29, 1958,
13 U.S.T. 2312, T.1.A.S. No. 5200, 450 U.N.T.S.
as 24
Convention on International Trade in Endangered
Species of Wild Fauna and Flora (“CITES”),
done Mar. 3, 1973, 27 U.S.T. 1087, T.I.A.S. No.
8249. 993 U.N.T.S. 243, ar ended June 22, 1979,
see U.S. Dep’t of State, Treaties in Force 295
(1990) —_ 13
Convention on Long-Range Transboundary Air
Pollution, done Nov. 13, 1979, 34 U.S.T. 3043,
T.LA.S. No. 10541 - , 15
Convention on Nature Protection and Wildlife
Preservation in the Western Hemisphere, opened
for signature Oct. 12, 1940, 56 Stat. 1354, T.S.
No. 981, 161 U.N.T.S. 193 .. 14
Memorandum of Intent Concerning Transbound-
ary Air Pollution, Aug. 5, 1989, United States-
Canada, 32 U.S.T. 2521, T.1.A.S. No. 9856 15
Memorandum of Understanding Concerning Sal-
monid Research and Enforcement of the Inter-
national Convention for the High Seas Fisheries
of the North Pacific Ocean, Apr. 9, 1986, see
U.S. Dep't of -State, Treaties in Force 819
(1990) , 14
aad
Vil
TABLE OF AUTHORITIES—Continued
Protocol Concerning the Control of Emissions of
Nitrogen Oxides or their Transboundary Fluxes
Nov. 1, 1988, 28 I.L.M. 212
Protocol on Substances that Deplete the Ozone
Layer, opened for signature Sept. 16, 1987, 26
LL.M. 1541
Protocol to the 1979 Convention on Long-Range
Transboundary Air Pollution, done Sept. 24,
1984, 27 L.L.M. 692
Treaty on Fisheries, Apr. 2, 1987, see U.S. Dep’
of State, Treaties In Force 319 (1990)
Treaty Relating to Boundary Waters, Jan l,
1909, United States-Great Britain, 36 Stat. 2448,
T.S. No. 548
1261
Vienna Convention for the Protection of the Ozone
BOOKS, TREATISES & ARTICLES
G. Born & D. Westin, International Civil Litiga
tion In United States Courts (1989)
Chayes, “Managing the Transition to a Global
Warming Regime or What to Do til the Treaty
Comes”, in Greenhouse Warming: Negotiating
a Global Regime 61 (World Resources Institute
ed. 1991)
P Erlich & E Wilson. Biodiversity Studie
Science and Policy, 253 Science 758 (Aug. 16,
1991)
Gallob, Birth of the North American Transbound-
ary Environmental Plaintiff, 15 Harv. Envtl. L
Rev. 85 (1991)
D. Jablonski. Extinctions 1 Paleontological Ps
pective, 253 Science 754 (Aug. 16, 1991)
Note. The International Appl cahilitu of Section 7
of the Endangered Species Act of 1973, 29 Santa
Clara L. Rev. 171 (1989)
Pag
viii
TABLE OF AUTHORITIES—Continued
Rathjens, “Energy and Climate Change”, in Pre-
serving the Global Environment 154 (J. Mathews
RF a ae
Restatement (Third) Foreign Relations Law of
the United States (1986)
J. Story, Commentaries on the Conflict of Laws
(7th ed. 1872) .
H. Thoreau, Walden and “C ivil Dis sobedience” (Sig-
net Classic, New American Library ed. 1960)
U.S. Dep’t of Justice, Antitrust Enforcement
Guidelines for International Operations (1988)
U.S. Dep’t of State, Treaties in Force (1990)
U.S. Fish & Wildlife Service, Endangered Species
Technical Bulletin, vol. XVI, No. 6, June 1991
H. Wheaton, Elements of International Law
(1866)
MISCELLANEOUS
Clairborne, Rare Trout Reintroduced to Dead
Lake, Wash. Post, June 5, 1990, at A21 .
Hawkes, Agony and Ivory, The Times (London),
Aug. 3, 1991
Hiltzik, Sifting Through the Ww reckage of a Shat-
tered Ecosystem, L.A. Times, Mar. 5, 1991, a
8, col. 1 e ee
Schulz, Outdoors: Migrating Songbirds, Associ-
-_— ated Press, May 13, 1991, Domestic News
Wu Dunn, Pessimism Is Growing on Saving Pan-
das from neni N.Y. Times, June 11, 1991
at C4, col.
Acid Rain in me West, N.Y. Times, Oct. 7, 1986,
at C3, col. 5 ...... ee
Brief for the EEOC, EEOC v. Arabian American
Oil Co., No. 89-1838 (U.S., filed November
Ee ene a a a
Drug Store News, Vol. 13, No. 9 at 64 (1991)
Fears Over Radiation Spreading in Europe, Chi-
cago Tribune, May 3, 1986, at 5
Japan Finds Higher Radiation in Rain, L.A. Times,
May 5, 1986, pt. 1, at 6, col. 2 .........
Oil “May Have Killed 20,000 Birds’, Press Ass’ n
Bing Be Ty BDO cccccccocccecscccccescccevnsnesecsnncseoes —
Page
12
passim
17
4
11
or
or
Cc
IN THE
Suprene Court of the United States
OCTOBER TERM, 1991
No. 90-1424
YEFENDERS OF WILDLIF!
On Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit
BRIEF OF AMICI CURIAE
AMERICAN ASSOCIATION OF ZOOLOGICAL
PARKS & AQUARIUMS AND
FRIENDS OF THE EARTH
IN SUPPORT OF RESPONDENTS
INTERESTS OF AMICI CURIAE
imicus curiae, the American Association of Zoological
‘arks & Aquariums (AAZPA), is a professional associa-
on representing virtually every major zoological park,
aquarium, wildlife park and oceanarium in North Amer-
a.' The members of AAZPA provide educational pro-
arties have consented tft the fi gy of tl pri
2
grams, research facilities, and insights into the animal
kingdom for the 112 million annual visitors to North
America’s zoos and aquariums.
AAZPA helps coordinate the conservation and research
programs of its members. Its members maintain research
facilities throughout the world. The ability of its member
organizations to conduct important biological research
into endangered species worldwide would be significantly
hampered by a restrictive interpretation of the Endan-
gered Species Act. AAZPA has created the Species Sur-
vival Plan, a prototype program to protect endangered
animals. Forty-nine of fifty-six species in the program
have habitats outside of the United States. Several of
these species, including the Asian and African elephant,
orangutan, and Sumatran rhinoceros, are threatened by
projects at issue in the record of this case. Finally, the
educational function of zoos and wildlife parks depends
on the survival of endangered species throughout the
world. More than eighty percent of species exhibited in
member institutions have natural habitats outside the
United States.
Amicus curiae Friends of the Earth is an organization
with 50,000 members and supporters in the United States.
Its activities include research, education, litigation and
lobbying on a range of international, national and local
environmental and wildlife conservation issues. Friends
of the Earth is the U.S. affiliate of Friends of the Earth
International, a worldwide network with member organ-
izations in forty-three countries. Most of these countries
are affected by U.S. agency actions that the courts below
held are covered by Section 7 of the Endangered Species
Act.
3
SUMMARY OF ARGUMENT
Section 7 of the Endangered Species Act applies to
U.S. agency actions with effects abroad for at least three
independent reasons. First, there is nothing “extra-
territorial” about applying Section 7 to regulate the in-
ternal processes of the United States government. The
consultative procedure occurs in this country and is sub-
ject solely to the principles of American law. The re-
quirement of “no jeopardy” to endangered or threatened
species applies only to U.S. government agency actions;
foreign governments are affected only if they voluntarily
choose to accept U.S. agency assistance for their projects.
Second, even if this case were deemed to involve the
extraterritorial application of U.S. law, the global nature
of environmental problems together with the limited bur-
den of Section 7 make inapplicable any presumption that
Section 7 should apply only domestically. This Court
evaluates each area of law separately before deciding to
apply the presumption against extraterritoriality to that
area, and the considerations that led the Court to apply
that presumption in areas such as labor and employment
argue against extending any such presumption to environ-
mental laws such as Section 7.
Third, in any event, the government has functionally
conceded that this law applies extraterritorially. The
government’s own regulation applies Section 7 to the high
seas, an area outside the territorial jurisdiction of the
United States.
ection i(a 2 provides, in relevant part: “Each Federal
gency shall. in consultation with and with the assistance of the
Secretary, insure that any action authorized, funded, or carried
out by such agency .. . is not likely to jeopardize the continued
existence of any endangered species or threatened species|.
16 U.S.C. §$ 15386(a 2 LOSS
4
ARGUMENT
The wild goose is more of a cosmopolite than we:
he breaks his fast in Canada, takes a luncheon in
the Ohio, and plumes himself for the night in a
southern bayou.
Henry David Thoreau *
The extinction of species is one of the greatest environ-
mental threats facing the world community. Many scien-
tists believe that the world is already undergoing one of
the largest mass-extinctions in the history of the planet.’
In 1973, Congress passed the Endangered Species Act,
16 U.S.C. $§ 1531-44 (1988 & Supp. I 1989), to provide
a comprehensive U.S. response to this critical problem.
A central part of the Endangered Species Act is Section
7, which prescribes that each federal] agency shall con-
sult with the Secretary of the Interior. to ensure that any
action that agency authorizes, funds, or carries out is not
likely to jeopardize the continued existence of any en-
dangered species or threatened species. 16 U.S.C. § 1536
‘a)(2).° This rule is meant to ensure that extinctions
do not occur as the result of actions of the federal gov-
ernment itself.
The two decades since the passage of the Endangered
Species Act have demonstrated the wisdom of this ag-
gressive approach to protecting endangered species around
the world. In that time, the populations of familiar species
SH. Thoreau, Walden and “Civil Disobedience” 212 (Signet
Classic, New American Library ed. 1960).
*D. Jablonski, Extinctions: A Paleontological Perspective, 252
Science 754 (Aug. 16, 1991): cf. P. Erlich & E. Wilson, Biodivers-
ity Studies: Science and Polit y, 253 Science 758 (Aug. 16, 1991).
5 For actions affecting the high seas, the required consultation
is with the Secretary of Commerce. The Secretary of the In-
terior has delegated land consultations to the Fish and Wildlife
Service; the Secretary of Commerce has delegated high-seas con-
sultations to the National Marine Fisheries Service.
such as giant pandas, rhinos and elephants have declined
by fifty percent or more.* Populations of some migratory
songbirds in U.S. states declined by as much as eighty
percent in the 1980’s alone.’
Section 7 of the Endangered Species Act was inter-
preted from the time of its enactment to apply to all
U.S. goverrment actions, in this country or elsewhere,
until 1986 when the Interior Department promulgated the
regulation at issue here, 50 C.F.R. § 402 (1990). In the
case now before the Court, the Secretary urges that the
statute does not mean -what it clearly says. The Secre-
tary argues that this Court should imply a limited geo-
graphie scope into the unambiguous, unlimited language
of Section The Secretary urges that Section 7 should
apply only to federal agency action carried out wholly
within U.S. territorial jurisdiction, and that outside_ of
this country, federal agencies should be free to cause the
extinction of entire species of life. This position should be
I eye ed.
I. THE CHALLENGED APPLICATION OF SECTION
7 CANNOT PROPERLY BE CLASSIFIED AS “EX-
TRATERRITORIAL”
The Secretary rests almost entirely on the argument
that applying Section 7 to the agency actions at issue
here constitutes an “extraterritorial” application of the
Endangered Species Act, and that such an application
contradicts principles of statutory interpretation. As a
threshold matter, however, the Court need not reach the
dispute over the proper theory of statutory construction,
because there is nothing “extraterritorial” about regulat-
ing the internal activities of the United States government
® See, e.g.. Wu Dunn, Pessimism Is Giowing on Saving Pandas
from Extinction, N.Y. Times, June 11, 1991, at C4, col. 1 (50%
decline in giant pandas); Hawkes, Agony and Ivory, The Times
London), Aug. 3, 1991 (75% decline in Kenyan elephants
‘Schulz, Outdoors: Migrating Songbirds, Associated Press, May
13. 1991, Domestic News
6
This Court has been reluctant to apply U.S. law where
another country could demonstrate that its rights and
authority would be infringed. American Banana Co. v.
United Fruit Co., 213 U.S. 347, 356 (1909).8 Thus, the
Court has sometimes declined to apply U.S. law where it
would regulate the activities of persons outside the
United States, or governments outside the United States.”
and where that regulation would conflict with foreign
law. The application of Section 7 to federal agency ac-
tivities to be undertaken in foreign countries does not
implicate such a concern. Section 7 does not declare any
private action taken in a foreign country to be illegal.
It does not prescribe United States environmental stand-
ards or regulations for foreign countries. Any foreign
country that elects to take action that will threaten its
endangered wildlife may do so; it simply must do so with-
out U.S. assistance. The decision by the United States to
refrain from spending U.S. funds or to decline to con-
tinue a particular U.S. agency program is an issue that
can only be judged under U.S. law: there is no potential
for conflict with foreign law.
_—
Section 7 of the Endangered Species Act contains two
requirements: (1) a procedural requirement that federal
agencies consult with one another; and (2) a substantive
requirement that’agencies not jeopardize endangered wild-
life. As the Secretary concedes, the consultations consist
S As discussed below. the holding of American Banana—that
the U.S. antitrust laws do not apply to conduct outside of the
U.S.—has since been overruled. Continental Ore Co. V. Union
Carbide & Carbon Corp., 370 U.S. 690, 704-05 (1962 2
® See EEOC v. Arabian American Oil Co., 111 S. Ct. 1227 (1991)
(“Aramco”). Indeed, this Court has sometimes applied this ra-
tionale so as not to apply U.S. law to disputes between purely
foreign parties while in U.S. territory. See McCulloch v. Sociedad
Nacional de Marineros, 372 U.S. 10 (1963) (labor dispute between
foreign sailors and foreign vessel owners in U.S. port); Benz v.
Compania Naviera Hidalgo, S.A., 353 U.S. 188 (1957) (same).
10 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) °
Underhili v. Hernandez, 168 U.S, 250 (1897).
I “structured deliberations—whic] re wholly internal
to the United States Government|!.]’ This consultation
urs entirely within the juridical confines of the United
States and is subject only to the requirements of domestic
law. The consultations take place physically within a few
blocks of this Court. The adequacy of the Section 7 con-
sultation can be judged only by domestic law. No foreign
aw could apply.
The subs antive “no ieonal
7 ) ie ] , + +] ‘ +>
f appiles Only to the actions
this requireme!
prevent a projec irom going
, , . . .
abroad, the question primar
States will subsidize another
199 404 L ] 1. ; 4 . a ; Y
Court held last term, it is Con
projects are subsidized with
. | . ~~ rr {
m, 111 S. Ct. 1759. 1775 (1!
i f evula ns the rer
he subsidy Id. at 1775 n.d.
eral aid to states have never
soverelgnty
Bi r Pet r Manue
: ] ']
. ‘ ‘ P .
j t rift Liive I
+ > 4 , ,
t d th ! ent ft
ereigni on exes 7
} i rt} ? Tn ‘ a ¢ T
e J.A. at 185
From t e | time. U.S
ts abi d e.g. Voice of An
the decision to modify or f:
ize endangered pecies Ss not
er! = r) ’ \ [’ >. avgel ies
nflict with othe rovernments
pi ase where the United St
ernment’s project.
iS. C.0 So sti dD | dD
holding minimum drinking re/}
dy”’ requirement of Section
of the U.S. government.’
in some circumstances
all. Applied
the United
ation’s projects.’ As this
right to decide which
Rust
may
al
whether
forward
is
;
7h
il\
‘
)
press
U.S. money Sulli-
f
.
91). “!T lo avoid the force
n1TeY 7) nly lecline
1p] I Lali Sim ny gecilne
Similar conditions on fed-
been held to infringe state
! Secr the
4 n .
Department his interpreta-
Dp
hat tl n wW nfringé
basi it s remen
pplies or to U.S. agen
ncie I? I er? stecd
erica radio towel! But again,
na project so ; not to jeop-
extraterritorial’ the decision
end U.S. money. The possibility
even less than in the more
e sa ting a foreign gov-
ole, 483 U.S. 203 (1987 up-
eceipt of highway funds tie);
8
The Secretary claims, without any record support, that
the “no jeopardy” requirement may sometimes affront for-
eign sensibilities. Br. at 46-47. This is very different from
an argument that Section 7 conflicts with foreign rights,
and is not enough to make the application of Section
7 “extraterritorial.” In fact, the political branches fre-
quently attach restrictions on the use of U.S. foreign aid
funds.’* As the government itself concedes, recipients
of funds from the U.S. Agency for International Develop-
ment must agree to environmental conditions comple-
mentary to those in Section 7 of the Endangered Species
Act."" Among many other conditions, foreign aid recip-
ients must typically agree not to violate U.S. notions of
what constitutes bribery, and must comply with U.S.
legislation forbidding the boycott of Israel.’7 There is
nothing unprecedented or even unusual about interpreting
Section 7 in a way that affects projects assisting foreign
governments.
In sum, Section 7 is merely one of many laws that
impose substantive and procedural restrictions on federal
Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989) (upholding
speed limit/highway funds tie), cert. denied, 110 S. Ct. 1112
(1990).
'® See, e.g., 22 U.S.C. §2151b(f)(1) (1988) (conditioning any
contribution to the United Nations’ Population Fund on assurances
that the Fund not engage or assist in abortion): Pub. L. No.
101-513, 1990 U.S. Code Cong. & Admin. News, to be printed at
104 Stat. 1979, 2016 (applying same restrictions on all foreign
assistance funds}.
© See 22 U.S.C. §215l1q(g) (1988) (directing Administrator of
AID to take various actions to protect endangered species): ef.
22 U.S.C. § 262m-2, -4, -5, -7 (1988 & Supp. I 1989) (U.S. to
vote shares in World Bank and similar bodies with consideration
of environmental concerns); Pub. L. No. 101-513, 104 Stat. at
2013-16 (imposing environmental restrictions on all foreign aid
funds).
17 See, e.g., 22 U.S.C. §2779(c) (1988) (bribery): 50 U.S.C.
App. § 2402(5)(a) (1988) ‘Israeli boycott); Pub. L. 101-513,
104 Stat. at 1982 (same).
|
correct, none of thes iaWS that assure regularity in the
eaAid
government decisions. If the Secretary’s position were
practice of government—the Administrative Procedure
Act, the Merit Systems Protection Act, the Government
in the Sunshine Act, the Ethics in Government Act, or the
Freedom of Information Act, to name a few—would ap-
ply whenever the specific decision at issue has an impact
in a foreign nation.'* The secretary has cited no case,
in this Court or in any other, in which rules structuring
government decisions have been deemed an “extraterri-
torial” application of law."® While Section 7 may some-
times have an international component, its requirements
are intrinsically domestic and a direct incident of Amer-
can sovereignty. This procedure cannot properly be
deemed extraterritorial.
ll. THE ENDANGERED SPECIES ACT WAS ENACTED
AGAINST THE BACKGROUND OF INTERNA.
TIONAL CHOICE-OF-LAW PRINCIPLES THAT EX-
TEND THE ACT TO U.S. ACTIONS AFFECTING
SPECIES OUTSIDE THE UNITED STATES
Even if requiring compliance with Section 7 for proj-
ects abroad were deemed an extraterritorial application
of the Act, the Secretary’s contention—that such an ap-
r } }
\ ne thes tatutes pec ii\ Stat th ii Lt ppile 5 to
cit = ns ? ney n iT | n fol ; cs I igh f ( Ai oe
. }
} Ss speci liv hi ted tions wit purely domest effect
The Secretarvy’s reliance on United States Verdugo-l rquidez,
110 S. Ct. 1056 (1990), Br. at 33, 45, is disingenuous. There.
the Court held that the F
rth Amendment. which extends to
“the per ple _ does not Pp? tect roreign citizens outside f f the
United States, 110 S. Ct. at 1065; the Court did not hold that
the Fourth Amendment never applies outside this country. (C/
Reid v. Covert, 354 U.S. 1 (1957 Fourth and Fifth Amendment
constraints do apply to military trial of U.S. citizens abroad
Foley Bros., In Filardo, 336 U.S. 281 (1949 involved the
failure of a private employer (a government contractor) to provide
overtime pay for work done in two foreign countries, and does
not address statutory constraints on the government itself.
-
10
plication is presumptively impermissible—cannot be sus-
tained.
A. The Judicially-Created Presumption Against Ex-
traterritoriality Is Merely an Aid to Statutory
Construction
The presumption against extraterritoriality upon which
the Secretary relies is purely a judicial creation. Such
presumptions have vitality only to the extent that they
produce an accurate reflection of the intent of Congress.*°
This Court has long recognized that presumptions and
other principles of statutory construction are not rules of
law, but are instead common-sense guides to ascertain
what the political branches likely intended: *'
Generalities about statutory construction help us
little. They are not rules of law but merely axioms
of experience. They do not solve the special diffi-
culties in construing a particular statute. The vari-
ables render every problem of statutory construction
unique.”
In each new area of law, the Court has always consid-
ered whether and to what extent the presumption against
extraterritoriality refiects the will of the political
branches.** As discussed below, in the context of environ-
2° United States v. Albertini, 472 U.S. 675, 680 (1985) (“Any
other conclusion, while purporting to be an exercise in judicial
restraint, would trench upon the legislative powers vested in
Congress by Art. I, § 1, of the Constitution”).
*1 See Bowen v. Michigan Academy of Family Physicians, 476
U.S. 667, 672 n3 (1986) (a presumption is controlling only
“where substantial doubt about the congressional intent exists’’).
22 Weinberger v. Rossi, 456 U.S. 25, 28 (1982) (quoting United
States v. Universal CJ.T. Credit Corp., 344 U.S. 218, 221 (1952)).
*3 As this Court has said about a related principle of statutory
construction: “this interpretative canon is not a license for the
judiciary to rewrite language enacted by the legislature.” Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 493 n.11 (1985) (quoting
United States v. Albertini, 472 U.S. 675, 680 (1985) ).
ry the secretary.
6. Any Presumption Against Extraterritoriality Does
Not Apply to Environmental Laws in General or to
the Endangered Species Act in Particular
Environmental menaces pose unique threats to tl
ernational community. Events in one nation may ha
vt
profound consequences for neighboring—-or even distant
countries.** The Kuwaiti oil fires and th
nuciear reactor expiosion are just two recent exampies
re ‘hernoby |
if the impossibility of countries’ sealing their borders
Py. ; — a , 41 1j actar _ wane « } _—
irom environmental! qgisascvers occurring avuruaud,
ne worldwide depletion ot the ozone laver may iead to
- : - se lInited Stat
J 10ons OL new Cases OI SKI! Cancer 1n Lic lives ; al©€s
— , 1 Tens i? és ‘17 ”
aione, Acid rain from he United §S ates nas killed
more than 17,000 bodies of water in Canada and may
. . . ° . , . . ’ * }
ve eliminated a variety of nsh trom thes akes and
. "7 , , ° . 4 4 re. —
r rs UWiodal warming may ransiorm entire e@cosys-
\ IQs i | low. +} +} + } et 4 } > of} ot
’ ly i Lé $s a { pted | C1 tel il I
, eg 2 ; " regu 4 that " \ 4 }? . ite ‘ +
] elg Relat ; La rT tre t ~ 102( ]
x / ‘ Stat jlun m ¢ f Ame 148 F 2 Hit
2d O11 945
- 0 Vi K d 20000 Bird Press A
Mar. 28 i] Hiitz Sift i” gh ?t W re
f te L.A. Times, Mar », LOO] t 3, col. 1
S } Over Radiat Spreading Europe. C} Te Tril
M 1986, at 5: J n I Hiahe Rad ki
\ es, May 5, 1986, pt. 1 t 6, col. 2
EPA Pr sed Rule on Protectior f Stratosnher Ozone. 5?
f re 17,489 198 t be dified at 40 (.} R t. SZ !
sacl Tex 14 | R7 T} re } wits as hig T rY
, ‘ radia , and tig | ect effects | riawil
pl n on Americans are enormous. /d
12
tems and lead to fundamental changes in fisheries and
local climates.*” Extinctions caused by the eradication of
the tropical and subtropical rain forests may preclude
scientists from producing drugs that have proven effective
in treating cancer, malaria, eye diseases, and other ail-
ments.” The loss of other plant species endangers agrono-
mists’ efforts to produce higher-yielding and disease-
resistant varieties of crops such as corn, rice, and wheat.*"
The protection of endangered species is a closely related
concern that also transcends national boundaries. En-
dangered species migrate freely across long distances,
with no respect for national boundaries. Many of the
animals on the endangered species list issued by the Sec-
retary live, at different times, in both the United States
and foreign countries. Species such as the gray whale,
whooping crane, and peregrine falcon all regularly mi-
grate between the United States or its waters and foreign
countries or their waters.*? The global nature of environ-
American Tran-boundary Environmental Plaintiff, 15 Harv. Envtl.
L. Rev. 85 (1991). Similarly, acid rain from pollution sources in
Mexico may affect lakes, rivers and other habitats in the U.S.
See Acid Rain in the West, N.Y. Times, Oct. 7, 1986, at C3, col. 5.
** The theory of global warming is that the recent rapid increase
in the amount of carbon dioxide in the earth’s atmosphere (a total
increase of at least 25° has already taken place) will change our
planet’s equilibrium temperature. If current technological and
economic trends continue, it is considered “al] but certain” that
noticeable global warming will occur. See Rathjens, “Energy and
Climate Change,” in Preserving the Global Environment 154, 167,
184 (J. Mathews ed. 1991).
*© See Drug Store News, Vol. 13, No. 9, at 64 (1991).
P. Erlich & E. Wilson, Biodiversity Studies: Science and
Policy, 253 Science 758, 760 (Aug. 16, 1991).
*2 Moreover, non-migratory endangered species such as the Ever-
glades kite, American crocodile, and West Indian manatee are found
both in the United States and in other countries. Federal agency
actions that reduce the range of such species outside the United
14
the United States has pledged to protect fish and other
living resources on the high seas.*° These conventions pro-
tect the harvest of salmon and tuna, and limit the capture
of whales.
mals, Feb. 7, 1936, United States-Mexico, 50 Stat. 1311, T.S. No.
912; Convention for the Protection of Migratory Birds and Birds
in Danger of Extinction, and Their Environment, Mar. 4, 1972,
United States-Japan, 25 U.S.T. 3331, T.1.A.S. No. 7990; Conven-
tion Concerning the Conservation of Migratory Birds and Their
Environment, Nov. 19, 1976, United States-USSR, 29 U.S.T. 4647,
T.LA.S. No. 9073.
In the Convention on Nature Protection and Wildlife Preserva-
tion in the Western Hemisphere, opened for signature Oct. 12,
1940, 56 Stat. 1354, 1356, T.S. No. 981, 161 U.N.T.S. 193, 194, the
governments of North and South America (including the United
States) have agreed to “protect and preserve in their natural
habitat representatives of all species and genera of their native
flora and fauna, including migratory birds, in sufficient numbers
and over areas extensive enough to assure them from becoming
extinct through any agency within man’s control!.]”
*> America’s international comm’ ments in this area include the
following: Convention on Fishing and Conservation of the Living
Resources of the High Seas, done Apr. 29, 1958, 17 U.S.T. 138,
T.LA.S. No. 5969, 559 U.N.T.S. 285; Amended Agreement for the
Establishment of the Indo-Pacific Fisheries Council, approved Nov.
23, 1961, 13 U.S.T. 2511, T.LA.S. No. 5218, 418 U.N.T.S. 348:
Convention for the Establishment of an Inter-American Tropical
Tuna Commission, May 31, 1949, 1 U.S.T. 230, T.1.A.S. No. 2044,
80 U.N.T.S. 3; Convention for the High Seas Fisheries of the
North Pacific Ocean, May 9, 1952, 4 U.S.T. 380, T.I.A.S. No. 2786,
205 U.N.T.S. 65; Memorandum of Understanding Concerning Sal-
monid Research and Enforcement of the International Convention
for the High Seas Fisheries of the North Pacific Ocean, Apr. 9,
1986, see U.S. Dep’t of State, Treaties in Force 319 (1990); Con-
vention for the Conservation of Atlantic Tunas, done May 14,
1966, 20 U.S.T. 2887, T.1.A.S. No. 6767, 673 U.N.T.S. 63: Conven-
tion for the Conservation of Salmon in the North Atlantic Ocean,
opened for signature Oct. 1, 1983, T.I.A.S. No. 10789; and, Treaty
on Fisheries, Apr. 2, 1987, see U.S. Dep’t of State, Treaties in
Force 319 (1990).
Given this long history of intern: nal tre es on e!
ronmental matters—all ratified by. Congress, and ma)
ecifically re erenced in the Endangered S cles A
T , ] , ; . ; ]
simply does not make sense to presume th: he
political branches of government are concerned only about
] + . +? . ] ; > ; . 9a + +. ? n
cjomestic matters when they consider environmental legis-
lation. As discussed above, this conclusion ji rel ce
by the inherently global nature of environmental issues.
Moreover, given the pervasive international focus of the
endangered Species Aci itself,” the Court can and should
presume that all sections of the Act apply extraterritori-
ally unless they specifically state otherwise.*'
C. This Court Has Evaluated Each Area of Law Sep-
arately Before Deciding to Presume that U.S. Laws
in that Area Apply Only Within U.S. Territory
The Secretary relies on cases holding, in some s of
7
law, that there is ¢ presumption that U.S. statutes are
see C} es Managing the Transition to a Global Warmi1
Re What ft 1) til the Treat ( nes l Gree it
W } / egotiating a Global Reagim 61 World Re ree
Institute ed. 199]
See Note T) Int ad , 1 A p } ty, of Sect $}
Endanagered Spec ict 19 29 Santa Clara L. Re 171 (1989
luding that $7 should have extraterritorial applicat
y G. Born & D. Westin, International Civil Litigation In
l") ted States Courts ch 7B 1989
,
'' Section 9(a ] B of the Endangered Species Act n fact
limits the prohibition on when one may “take” endangered o1
threatened species to takings within the United States
torial sea; Section 9(a)(1)(C) imposes a similar prohibiti Oo}
high seas takings. 16 U.S.C. § 1538(a)(1)(B)-(C This rest
that when the Act means to limit itself to domestic or high
applications, it says so specifically. Where, as in Section
such limitation appears, the Act is meant to apply without
hic limitation.
17
not intended to apply abroad.*? At one time the presump-
tion applied broadly in U.S. law,” but it has been sig-
nificantly narrowed in more recent cases. To decline to
apply this presumption to the federal environmental laws
generally or to the Endangered Species Act in particular
would be consistent with precedent in numerous areas of
law.
Many areas of U.S. law illustrate the facts that: (1)
the political branches have concerned themselves with con-
duct abroad, and (2) the U.S. courts have made an area-
by-area determination whether a presumption against
‘extraterritoriality is appropriate. For instance in the
area of antitrust, this Court overruled its holding in
American Banana, and has applied U.S. laws extraterri-
torially to encompass a wide range vf conduct occurring
solely or mostly in foreign jurisdictions. See Continental
Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690,
705 (1962); United States v. Sisal Sales Corp., 274 USS.
268, 275-76 (1927) .*
‘= See Aramco, 111 S. Ct. 1227 (presumption applies in employ-
ment discrimination case); Foley Bros., 336 U.S. 281 (same. in
labor case). But see, e.g., Continental Ore Co. v. Union Carbide &
Carbon Corp., 370 U.S. 690 (1962) (declining to apply presump-
tion in antitrust case).
Ss See, e.g., J. Story, Commentaries on the Conflict of Laws § 539
(7th ed. 1872); H. Wheaton, Elements of International Law $$ 77,
111-14, 134-51 (1866).
'* This Court recently characterized American Banana as having
been “substantially overruled” by Continental Ore. W.S. Kirk-
patrick v. Environmental Tectonics Corp., 110 S. Ct. 701, 705
(1990). Likewise, this Court has repeatedly cited with approval
the Second Circuit’s decision in United States v. Aluminum Co. of
America, 148 F.2d 416 (2d Cir. 1945), holding that the Sherman
Act applies to conduct abroad that has effects within the United
States. See Continental Ore Co. v. Union Carbide, 370 U-S. 690,
704-05 (1962); Steele v. Bulova Watch Co., 344 U.S. 280, 288 n.16
(1952); Zenith Radio Corp. v. Hazeltine Research Corp., 395 U.S.
100, 114 n.&8 (1969). Accord Restatement (Third) Foreign Rela-
tions Law $415; U.S. Dep’t of Justice, Antitrust Enforcement
Guidelines for International Operations 29-34 (1988).
18
The federal courts have applied domestic law extrater-
ritorially in many other instances where the governing
statutes speak in jurisdictional terms much less specific
than the Endangered Species Act.*® For instance, this
Court interpreted the Jones Act to apply extraterritori-
lly in Lauritzen v. Larsen, 345 U.S. 571, 576-77 (1953),
where the United States has the predominant interest in
the acts at issue.** The Lanham Act is worded broadly
and makes no specific reference to conduct occurring
abroad. Nonetheless, this Court held in Steele v. Bulova
Watch Co,, 344 U.S. 280 (1952), that the Lanham Act
applies extraterritorially to prevent trademark infringe-
ment abroad that has effects in this country. Similarly,
U.S. patent law has been held to apply extraterritorially
to prevent infringing effects in the United States,” as
has U.S. copyright law,’* though neither statute contains
an explicit declaration to that effect.
'’ By contrast, Endangered Species Act §3(9) contains one of
the broadest definitions of “foreign commerce” covered by the Act
anywhere in federal law: “The term ‘foreign commerce’ includes,
nong other things, any transaction A) between persons within
one foreign country; (B) between persons in two or more foreign
countries C) between a person within the United States and
person in a foreign country; or (D) between persons within the
United States, where the fish and wildlife in question are moving
in any country or countries outside the United States.” 16 U.S.
‘ Using the balancing formula set forth in the decision, tf)
Lauritzen Court declined to exercise jurisdiction over the particular
transaction at issue. 345 U.S. at 583-93. However, in another case
this Court found that the same factors weighed in favor of th
extraterritorial exercise of Jones Act jurisdiction. Hellenic Lins
Ltd. v. Rhoditis, 398 U.S. 306 (1970).
‘7 See Spindelfabrik Suessen-Schurr v. Schubert & Salzer
Maschinfabrik Aktiengesellschaft, 908 F.2d 1568. 1577 Fed. Ciy
1990) (sustaining injunction requiring foreign defendant to label
all machines sold anywhere in the world as: “Not available for sale.
use or delivery to the United States”
1S See Update Art, Inc. v. Modiin Pub.. Ltd., 843 F.2d 67 (2d
Cir. 1988 - Peter Starr Prod. Co. v. Twin Continental Films, Ii
783 F.2d 1440 (9th Cir. 1986)
19
The federal securities laws are couched in general
terms that do not specifically refer to conduct occurring
in foreign states. But it is well-established that the se-
curities laws are applicable extraterritorially to foreign
conduct.” Like the securities laws, the U.S. commodities
laws have routinely been held to apply extraterritorially.*
The courts have held that generally worded federal
narcotics and other criminal statutes apply outside the
United States."' The United States exercises extraterri-
‘See Restatement (Third) Foreign Relations Law $416, com-
ment a; SEC v. Tome, 833 F.2d 1086, 1087-88 (2d Cir. 1987
cert. denied, 486 U.S. 1014 (1988): SEC v. Certain Unknown Pur-
chasers, 817 F.2d 1018 (2d Cir. 1987 , cert. denied, 484 U.S. 1060
(1988); SEC v. Vaskevitch, 657 F. Supp. 312 (S.D.N.Y. 1987
SEC v. Banca Della Svizzera Italiana. 92 F.R.D. 111 (S.D.N-Y.
1981); see also SEC v. Minas de Artemisa, S.A., 150 F.2d 215
(9th Cir. 1945)
Dozens of lower court decisions have applied the securities laws
extraterritorially in private actions. See, e.g., Grunenthal GmbH v.
Hotz, 712 F.2d 421, 425 (9th Cir. 1983): Continental Grain (Aus-
tralia) Pty. Ltd. v. Pacifie Oilseeds, Inc., 592 F.2d 409 (8th Cir.
1979): Schoe? hawm ?’. Firsthrook. 405 F.2d 215 (2d Cir. 1968 )
(en banc), cert. denied, 395 U.S. 906 (1969 ): ef. Zoelsch v. Arthur
Andersen & Co., 824 F.2d 27, 30-31 (D.C. Cir. 1987).
” See, e.g., Tamari v. Bache & Co. (Lebanon) S.A.L., 730 F.2d
1103 (7th Cir.), cert. denied, 469 U.S. 871 (1984); Psimenos v.
EF. Hutton & Co., 722 F.2d 1041 (2d Cir. 1983): Transnor
(Bermuda) Ltd. v. B.P. North America Petrol: um, 738 F. Supp
1472 (S.D.N.Y. 1990).
"! B.g., Kawakita v. United States 343 U.S. 717 (1952): United
States v. Bowman, 260 U.S. 94 (1922); United States v. Smith, 18
U.S. (5 Wheat.) 153 (1820); United States v. Yunis. 924 F.2d
1086 (D.C. Cir. 1991); United States v. Wright-Barker, 784 F.2d
161 (3d Cir. 1986); United States v. Baker, 609 F.2d 134 (5th Cir.
1980); United States v. Brown, 549 F.2d 954 (4th Cir.). cert.
denied, 430 U.S. 949 (1977); cf. Blackmer v. United States. 284
U.S. 421 (1932) (sustaining extraterritorial subpoena to require
U.S. citizen to appear at criminal trial).
‘la ‘isdiction to impose taxes." To adopt the govern
ment’s position in this case—that no U.S. statute on an)
; A s
s
subject applies extraterritorially unless it contains a spe-
cific statement to that effect—would endanger important
federal! civil and criminal] enforcement efforts in numerous
The Secretary—while barely acknowledging the broad
range of laws applying extraterritorially, Br. at 33 n.2]
infers a rigid presumption from a line of cases beginning
with Foley, and ending with this Court’s decision in
Aramco, 111 S. Ct. 1227." Each of tl
presumption against extraterritoriality in the context of
statutes regulating labor and employment. However,
Restatement Third Fore Relat Law $11-12: ¢
] [ 65 U.S 17 1924
Indes st last rm it the ; e) nt t
the posit , that the pre mnt ? territorialit was bstar
tially more limited then the 1 tion it urges here. See Brief fo
the EEOC at 8-10
" the other two cases in that ne f ithoritv. McCulloe}
socredad N\ } (2 U.S. 10 196 nd B
{ Da?) ‘ Fy ‘ j 5 | ~ ] len’ 1957 nr Ter the
government lit! ses di the pr
, + , y " ‘ a oT Tac petweel
foreign s ta Unite
cat I t! S¢ A
leg t the stat
{ tner tna
T YY
21
labor and employment are traditionally local concerns,
and have rarely been the subject of extraterritorial legis-
lation by any country. To seek to regulate workplace con-
ditions and the duties of employers in another country
would present a serious danger of conflict with that coun-
try’s laws.** The Restatement (Third) Foreign Relations
Law of the United States (1986) generally does not
recognize a presumption against extraterritoriality.°* But
the Restatement does conclude that U.S. extraterritorial
jurisdiction is limited “over predominantly local activi-
ties, such as industrial and labor relations|.|’’ /d. at
$s 414 comment c.
Aramco, an employment law case on which the govern-
ment places the greatest weight, is inapposite. In Aramco,
the statute at issue defined the “commerce” covered by the
56 Section 7 presents a much less significant risk of conflicts,
because it only regulates the activities of the U.S. government and
has effect in foreign countries only if they choose to accept U.S.
aid. By contrast, in many of the areas discussed above such as
antitrust or securities law in which U.S. law is applied extra-
territorially, U.S. law declares illegal acts done by private parties
in foreign countries, even though those acts may be permissible
under the home countries’ laws.
57 The Restatement (Third) discussed its decision to omit a pre-
sumption that U.S. statutes apply only domestically :
In the past, the jurisdiction of a state to make its law applicable
in a transnational context was determined by formal criteria
supposedly derived from concepts of state sovereignty and
power. . . . Increasingly, the practice of states has reflected
conceptions better adapted to the complexities of contemporary
international intercourse. ... Territoriality and nationality re-
main the principal bases of jurisdiction to prescribe, but in
determining their meaning rigid concepts have been replaced
by broader criterial[. |
Id. at 235-37. Among other permissible bases of jurisdiction, Re-
statement § 402(2) allows the United States to regulate the con-
duct of its nationals, and Restatement § 402(1)(C) allows the
United States to regulate based on effects within this country of
activity abroad.
©)
ar
act with boilerplate language borrowed from statutes
never held to apply extraterritorially.°* Here, Endangered
Species Act Section 3(9) carefully defines “foreign com-
merce” in a way that leaves no doubt as to its extrater-
ritorial effect.*” The statute in Aramco had numerous pro-
cedural indications that it was intended to apply only in
the United States.” Here, several provisions of Endan-
rered Species Act Section 7 indicate that the political
branches anticipated and squarely addressed its applica-
tion outside this country.”
The presumption against extraterritorality applied in
the Foley-Aramco line of cases is appropriate in the field
of labor and employment. In contrast. as demonstrated
above, that presumption is not appropriate in the environ-
mental area. In environmental cases, the Court should
assume (as it does in many other areas) that the political
branches legislate against the background of choice-of-law
and public international law principles. Those principles
allow the United States to regulate its own nationals and
to regulate activities abroad with an effect in this country.
Where ‘unlike here) there is an actual conflict with the
laws of another sovereign with a greater interest in the
111 8S. Ct. at 1281-32
'See n.45 supra
“! See, e.y., § 7(n granting judicial review for agency actions
itside of any circuit,” and granting standing to se judicial
review to any “person,” defined in §3(13) to include foreign goy
ernments $7(1) (State Department consultation on exemption
affecting treaty obligations): § 7(j granting exemptions wher:
necessary for national security
As discussed below, another distinction between Aramco and thi
case 1s that in Aramco, the agency charged with enforcing the
statute originally interpreted it to apply only domestie: lly, 111
s. Ct. at 1235, while the contemporaneous interpretation of Sectio
the agencies charged with enforcing it held that Section 7 does
apply to agency action outside the United States.
23
transaction, U.S. courts may decline to exercise jurisdic-
tion under a comity analysis.” Interpreted against this
background, the Court should not presume that U.S. en-
vironmental laws apply only domestically.
The Secretary argues, citing Aramco, Br. at 33, that
respondents must demonstrate a “clear statement” that
Section 7 applies outside the United States. The Secretary
concedes, Br. at 39-41, that parts of the Endangered
Species Act do apply extraterritorially, and the Secretary
cites no authority for requiring a “clear statement” in
every section of an act that concededly applies extraterri-
torially at least in part. We respectfully suggest that the
“clear statement” hurdle need only be crossed for the Act
as a whole. In any event, the use of the terms “endan-
gered species” and “threatened species” in Section 7—
terms that concededly apply extraterritorially “—estab-
lishes the requisite clear statement that the section apply
overseas.”
62 See Restatement (Third) § 403; Timberlane Lumber Co
Bank of American N.T. & S.A., 549 F.2d 597 (9th Cir. 1976), aff'd
after remand, 749 F.2d 1378 (9th Cir, 1984), cert. denied, 472 U.S.
1032 (1985). This comity approach avoids serious conflicts with
foreign law where they actually occur, but allows the United States
to vindicate important interests abroad when no conflict exists, or
when the U.S. interest outweighs the foreign interest. Such a “par-
ticularized analysis of the respective interests of the foreign nation
and the requesting nation” was exactly the method this Court
recently set forth for determining when to allow direct extraterri-
torial discovery under the Federal Rules of Civil Procedure. Societe
Nationale Industrielle Aerospatiale v. U.S. District Court, 482 U.S.
522, 543-44 (1987).
63 Indeed, of the 1137 species listed under the Act on May 31,
1991, 522 are found exclusively outside this country. U.S. Fish and
Wildlife Service, Endangered Species Technical Bulletin, vol. XVI,
No. 6, June 1991 at 12.
64 See also supra n.61 (listing procedural indications that Section
7 applies abroad).
24
lil. THE SECRETARY'S OWN REGULATION AL-
READY RECOGNIZES THAT SECTION 7 AP-
PLIES TO U.S. AGENCY ACTIONS OUTSIDE THIS
COUNTRY’S TERRITORIAL JURISDICTION
Kven if a presumption against extraterritoriality were
applied to this case, the secretary, Dy virtue of his own
regulations, concedes that Section 7 is properly interpreted
» apply outside the territory of the United States. The
re gvulation na the secretary defends here applies, D\
own terms, outside the territory of the | nited States, to
tne giodal commons or the nign seas.’
rhe high seas, by definiton, are outside the “te rritori:
Imits Of anv nation.” This Court has consistentiy nel
+ho+ » ann! soy +9 , , . ] +mtaa4 4 +> s7 4
a ail Alpi a lon oO! iCUCT dl Slad U cS J al L10nS OcCcUr-
ring on the nign seas 18 an extraterritoria! applicati m ot
US law. SEF ©. Argentine Republi . Amerada He
Shipping Corp., 488 U.S. 428, 440 (1989): Aramco, 111
Ss. Ct. at 1235 (treating statutes applying to the high
nt} , ind ft, } Re g { }
nel I reg { [ iy ed ig fT
| Compare 50 C.F.R. § 402 87
‘ 2 f tl \ requ ry Feder g tat
th the Secretar t ire that t thoriz
nd ! é n the United St j j j
t | t eopardize the ntir qd xiste? , lict
f $ empnasis ada t} 0 CLF_LR 107 OO} : 197
sect 7(a)(2) requires every Federal age to ir e that
ties or programs, the United Stat = the hial
ain the } } ( nirv will not i ) { ‘
t CICS eT) ha dade
25
seas as extraterritorial). In concluding that Section 7
applies extraterritorially to the high seas, the Secretary
necessarily discerns that the section contains the requisite
indication of extraterritorial intent.®
At the very least, the inconsistency of the regulations
and the Secretary’s position in this Court remove any
basis for the government’s claim that its revisionist in-
terpretation of Section 7 deserves judicial deference.”
The irremediable clash between the regulations and the
Secretary's brief demonstrates that the government’s
reading of the statute does not reflect a knowledgeable
and careful reading of the Endangered Species Act, but
67 Accord United States v. Wright-Barke r, 784 F.2d 161, 166
3d Cir. 1986 applying criminal drug law extraterritorially to
conduct on high seas); Romero-Galue, 757 F.2d at 1152 n.13
same): United States v. Smith, 680 F.2d 255, 257 (1st Cir. 1982
(same), cert. denied, 459 U.S. 1110 (1983). Compare United States
Mitchell, 553 F.2d 996 (5th Cir. 1977). In Mitchell, the Fifth
Cireuit held that the Marine Mammal Protection Act applied to the
high seas and not to foreign jurisdictions, because the statute
made specific reference to the high seas and not to foreign coun-
tries. Of course, there is no similar limiting language in Section 7.
6S The Secretary apparently believes, Br. at 6, that agency actions
affecting the high seas create less potential for conflict with foreign
governments than actions affecting foreign territory. This propo-
sition is counter-intuitive-—actions that affect the high seas affect
each of the scores of nations that use the high seas—and, as demon-
strated above, is irrelevant to the question of whether applying
Section 7 te the high seas is “extraterritorial.”
6° This Court declined to defer to an agency position concerning
extraterritoriality in Aramco, 111 S. Ct. at 1235, because, like the
Secretary’s here, it was neither consistent nor well-reasoned. In
1ramco, the Court deferred instead to the agency interpretation
most nearly contemporaneous with the enactment of the statute,
which held that it did not apply abroad. Here, the Secretary’s
contemporaneous interpretation was that Section 7 does apply
abroad, and only years later did he change that interpretation
without any claimed basis for the change in his experience apply-
ing the statute).
1.JNALD J. GREE?
LESTER NURICK
W. HARDY CALLCOT?
Marc R. COHEN
KENNETH P. STERN
IAMES LEE BUCK II
REBECCA ARBOGAST
WILMER, CUTLER & PICKERI?
M Street. N.W
ungton, D.(
>
(207) 663-6000
in
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.