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Balelo v. Baldrige

Citation: 14 ELR 20317
No. Nos. 81-5806 et al., 724 F.2d 753/20 ERC 1718/(9th Cir., 01/24/1984) Rev'd en banc

The court upholds as consistent with the Marine Mammal Protection Act (MMPA) and the Fourth Amendment, a Department of Commerce regulation that allows the use in enforcement proceedings of data collected by government observers traveling with tuna fishermen. Fishermen must allow the government inspectors to accompany them on fishing trips as a condition of obtaining permits for the incidental taking of porpoises. First, the court rules that while the MMPA does not expressly authorize the observer program, the Act confers broad rulemaking authority on the Secretary and thereby implicitly authorizes the program. The program is reasonably related to the MMPA purpose of protecting and conserving marine mammals and is the only practical way to enforce permit limitations on the taking of porpoises. Further, Congress has implicitly consented to the program by amending the MMPA without altering the Secretary's power to continue the program. The court rejects the argument that Congress intended to limit the observer program to a two-year period for the purpose of collecting research and scientific information, finding that a two-year limitation on funding for the program does not indicate an intent to ban observers. Nor does congressional failure to enact a 1977 House bill that would have expressly funded an observer program for enforcement purposes indicate congressional disapproval of the program. Also, the program is within the statutorily acceptable enforcement procedures found in the MMPA.

Next, the court rules that the observer program does not violate the warrantless search prohibition of the Fourth Amendment. Without resolving whether the observer program constitutes a search, the court holds that, assuming the program is a search, it falls within the closely regulated industries exception to the Fourth Amendment warrant requirement. It notes that express congressional authorization of a warrantless search in a closely regulated industry is not necessary and that the taking of porpoises by the tuna industry has been closely regulated since 1972. The court then rules that the regulation establishing the observer program and the government observers' agency field manual establish an acceptable substitute for a warrant by providing ample warning of the observation and limiting the scope to activities necessary to carry out the objectives of the MMPA.

One concurring judge would hold that the observer program does not constitute a search under the Fourth Amendment.

A second concurring judge would explicitly hold that the observer program is a search and is within the closely regulated industry exception only because of (1) the unique enforcement proglems posed by ships at sea, (2) the important government interest involved, and (3) the restrictions placed on observers.

One dissenting judge joined by another, would hold that the regulation is not authorized by Congress. He would also hold, as would two other dissenting judges, that the observer program violates the Fourth Amendment.

Finally, one of the dissenting judges writes separately on why he would hold that the regulation violates the Fourth Amendment.

[This decision reverses a district court ruling, 12 ELR 20040, affirmed at 13 ELR 20203. The latter ruling was withdrawn when the court granted review en banc — Ed.]

Counsel for Appellants
James Lorenz, Ass't U.S. Attorney
Rm. 5-N-19, U.S. Cthse., 940 Front St., San Diego CA 92189
(619) 293-5610

Wayne Braverman
Tuttle & Taylor
609 S. Grand Ave., Los Angeles CA 90017
(213) 683-0600

counsel for Appellees
Raymond Zvetina
Haskins, Nugent, Newnham, Kane & Zvetina
Suite 2300, 110 W.C. St., San Diego CA 92101
(619) 236-1323

Browning E. Marean III
Gray, Cary, Ames & Frye
2100 Union Bank Bldg., 525 B St., San Diego CA 92101
(619) 699-2700

Before BROWNING, SNEED, KENNEDY, ANDERSON, TANG, SCHROEDER, PREGERSON, ALARCON, FERGUSON, NELSON and CANBY, Circuit Judges.