Motor Vessel Theresa Ann v. Richardson

No. 76-963-E (S.D. Cal. January 21, 1977)

The court temporarily enjoins enforcement of the Marine Mammal Protection Act with respect to the American tuna fleet because a 1977 permit allowing the incidental taking of porpoises while fishing for tuna has not been issued. The court also denies plaintiffs' motion for summary judgment to declare the Act unconstitutional. Notwithstanding the importance of the preservation of marine mammals, some quota will be imposed for 1977, and plaintiff tuna fishermen will suffer irreparable injury if they are not soon allowed to commence fishing "on porpoise." Plaintiffs' quota in this relief is limited to a pro rata distribution of one proposed quota for the entire year, and porpoise taken at this time must be credited against the ultimately-established quota. The 1976 government observer program for tunaboats shall be reinstituted. Although the court does not decide whether plaintiffs have a property right in tuna, plaintiffs do have a property interest, by reason of the permit, in the "opportunity to carry on their livelihood."

Counsel for Plaintiffs
Rudi M Brewster, William N. Kammer, Richard A. Paul
Gray, Cary, Ames & Frye
2100 Union Bank Bldg., San Diego CA 92101
(714) 236-1661

Counsel for Defendants
Peter W. Bowie, Ass't U.S. Attorney
U.S. Courthouse, Annex A, 325 West F St., San Diego CA 92101
(714) 293-5690

Martin B. Hochman, Regional Counsel
National Oceanic & Atmospheric Administration
300 S. Ferry St., Room 2417, Terminal Island CA 90731
(213) 796-2756

Counsel for Amicus Curiae: American Tunaboat Association
David G. Burney
Suite 1100, Wells Fargo Bldg., 1007 Fifth Ave., San Diego CA 92101
(714) 238-0011

[7 ELR 20588]

Enright, J:

Preliminary Injunction and Other Orders

A hearing on the plaintiffs' application for a preliminary injunction occurred on January 21, 1977, before the Honorable William Enright. Rudi M. Brewster, William N. Kammer, and Richard A. Paul appeared for the plaintiffs. Peter W. Bowie and Martin B. Hochman appeared for the defendants. David G. Burney appeared for the amicus curiae, the American Tunaboat Association. The court considered the points and authorities submitted by counsel and their oral argument. The court has filed a memorandum opinion today which is incorporated herein. Good cause appearing,

IT IS ORDERED that plaintiffs' request for a preliminary injunction staying enforcement of the Marine Mammal Protection Act is granted insofar as commercial fishing operations involving the incidental taking of porpoise, only, and [7 ELR 20589] subject to the following terms and conditions:

(A) This preliminary injunction shall remain in effect until an aggregate take of 10,000 porpoise has been reached. Provided, however, said quota shall be deemed filled, as to a particular species or stock, at any time when the take of such species or stock reaches those levels of take permissible to the United States flag fleet as set forth in the recommendations of Administrative Law Judge Vanderheyden in his decision served on January 17, 1977. Provided, further, that the setting of the aggregate quota is without prejudice to further application by either party to amend the allowable take. Provided, additionally, the take of any species or stock during the period of this order shall be subtracted from any quotas ultimately promulgated by the Director for calendar year 1977. Provided, finally, that there shall be no intentional setting on pure schools of eastern spinners and that the total take of the eastern spinner during the period of this injunction shall not exceed 2,000. This number has been selected only because of the short period of this order and does not reflect this court's opinion as to what the quota should be for 1977.

(B) The observer program as it existed in 1976 shall be reinstituted immediately. Defendants shall be given an immediate reasonable opportunity to place observers on board American tunboats. Observers shall be placed on at least 10 percent of the boats within two weeks from the effective date and on a total of 25 percent within an additional 20 days after that date. The vessels shall be designated in good faith by NMFS. The fleet will exercise good faith to place the observers. The government will report to this court on placement indicating the dates and vessels.

(C) The industry shall comply with the 1976 gear requirements and porpoise rescue procedures for fishing on porpoise. This does not prevent the industry from complying with the proposed 1977 gear requirements and porpoise rescue procedures. NMFS shall be charged with enforcement of this paragraph.

(D) The industry shall maintain marine mammal logs as required in 1976. In addition, masters shall accompany copies of those logs with a statement under oath attesting to the truthfulness of the information reflected in the logs.

(E) The industry shall make a timely application for a 1977 permit.

(F) Defendants shall give plaintiffs at least three days prior notice of exhaustion of any quota described in paragraph (A). This short notice period has been set only because of the short period of this order and the small quotas involved.

(G) Pursuant to Rule 65(c), plaintiffs shall post a bond in the amount of $5,000 prior to the effective date of this order. This bond also applies to case No. 76-971-E.

(H) This injunction shall take effect at 12:01 a.m., Pacific Standard Time, Tuesday, January 25, 1977.

(I) The benefits of this injunction are only available to holders of 1976 certificates of inclusion.

IT IS FURTHER ORDERED that plaintiffs' motion for a summary judgment is denied and their motion for leave to file a second amended complaint is granted.

Memorandum Decision

This proceeding presents important questions concerning the constitutionality of the Marine Mammal Protection Act, 16 U.S.C. § 1361 (the Act), and the issuance of permits under the Act to allow plaintiffs to engage in the taking of porpoise attendant to the catching of yellowfin tuna. In this regard plaintiffs seek a preliminary injunction to restrain the enforcement of the Act. Additionally, they seek summary judgment declaring the Act unconstitutional. Finally, they move this court for leave to amend their first amended complaint.

Upon duly considering the oral argument of counsel on this date, and upon duly considering all the memoranda, affidavits, exhibits, and decisions in related proceedings, the court does hereby deny plaintiffs' motion for summary judgment and does hereby grant the motion for leave to amend the first amended complaint upon the conditions set forth below. The court does also deny plaintiffs' request for preliminary injunctive relief insofar as it seeks total restraint upon the enforcement of the Act. However, for he reasons set forth below, and only upon the conditions set forth herein, this court does hereby enjoin the enforcement of the Act to allow American-flagged tuna boats to fish for tuna "on porpoise." This preliminary injunction shall allow supervised fishing on mixed schools of porpoise from January 25, 1977 at 12:01 a.m. until such time as a 1977 permit is either issued or rejected under the Act.

This injunctive relief limits the taking of porpoise to 10,000; the precise number of porpoise taken under this interim relief shall be applied to the permissible taking under the 1977 permit, if and when issued. Moreover, the total number of porpoise taken of any species shall not exceed the recommendations of the administrative law judge presiding over the hearings to consider the 1977 quota.¹ The delay in the issuance of this interim relief is granted to allow any party to obtain appellate relief, and to afford the government the opportunity to place the customary observers aboard the tuna vessels. This court finds, under Rule 6(h) of the Court of Appeals for the Ninth Circuit, that a longer stay cannot be granted, given the necessity for immediate relief. The government may place observers on at least 10 percent of the affected vessels, and may place additional observers if the parties so stipulate. Plaintiffs must maintain all 1976 gear requirements and maintain the customary porpoise loop. Additionally, this relief is contingent upon plaintiffs' application for a 1977 permit. Finally, the relief is conditioned upon plaintiffs' posting of security under Federal Rule of Civil Procedure 65(c) in the amount of $5,000.

Before discussing the rationale for these decisions, a brief summary of the history of this litigation and related proceedings is necessary to place these decisions in their proper perspective.

In October 1972 Congress passed the Marine Mammal Protection Act, which limited the taking of marine mammals. However, the Act imposed a two-year moratorium on taking pursuant to commercial fishing operations. 16 U.S.C. § 1371(a)(2). Upon the expiration of the moratorium the National Marine Fisheries Service (NMFS) issued a general permit, ostensibly under the Act, to the American Tunaboat Association (ATA) to allow the taking of marine mammals incident to tuna fishing operations.²

A civil action was commenced by environmental groups in the District Court for the District of Columbia, Committee for Humane Legislation, Inc. v. Richardson, 414 F. Supp. 297 [6 ELR 20500] (1976), challenging the legality of the general permit under the Act. The ATA intervened in that action; thus, representatives of all three interests — tuna industry, government and environment — were parties to that litigation. Judgment was rendered for plaintiff-environmental groups, essentially on the ground that the NMFS did not follow the provisions of the Act in issuing the general permit. The general permit was invalidated and the practice of tuna fishing "on porpoise" enjoined.

A series of stays were granted pending expedited resolution by the Court of Appeals for the District of Columbia. That court concurred in the decision of the district court but extended the stay of the district court's order until January 1, 1977. Committee for Humane Legislation, Inc. v. Richardson, 540 F.2d 1141, [6 ELR 20661] [Aug. 6, 1976).

In the interim, the NMFS imposed a quota on the taking of porpoise for the calendar year 1976 at 78,000. This quota was to operate as a further limitation on the permit which would otherwise expire on January 1, 1977 by order of the court of appeals. Utilizing a system of observers on board a limited number of tuna seiners, the NMFS determined that the quota was reached on October 21, 1976 and that the permit would expire the following day.

Plaintiffs commenced this action on October 19, 1976 and sought a temporary restraining order precluding the NMFS from enforcing the quota and thereby invalidating the permit.³ [7 ELR 20590] Although that temporary relief was granted on October 21, this court was satisfied that the concerns it possessed on that date concerning irreparable injury to the tuna industry did not justify the issuance of a preliminary injunction. Accordingly, on November 5, 1976, the restraining order was allowed to expire and tuna fishing "on porpoise" by American-flagged seiners came to a halt. The court then contemplated that the ban on tuna fishing "on porpoise" would continue only until January 1, 1977, or shortly thereafter, at which time a permit for calendar year 1977 would issue.

The administrative proceedings necessary to the granting of such a permit have not yet concluded. The NMFS has proposed a quota of 29,920 porpoise taken under a 1977 permit; that total is further delineated by species.⁴ Upon hearing all interested parties, however, the administrative law judge released a recommended decision to the NMFS, concluding that a quota of 96,000 porpoise, also delineated by species, would be appropriate for a 1977 permit.⁵ That judge recommended that fishing on "mixed schools" of porpoise be allowed under the regulations adopted incident to the issuance of the 1977 permit.⁶ Under the procedural requirements of the Act,⁷ it is unlikely that a 1977 permit can issue prior to April 1977.

As stated previously in this litigation, this court is cognizant of the several factors to be weighed when considering the propriety of preliminary injunctive relief: probability of ultimate success on the merits, the relative hardships of the parties involved, irreparable injury asserted by the party seeking relief, and the public interest. Friends of the Earth, Inc. v. Coleman, 518 F.2d 323 [5 ELR 20233] (9th Cir. 1975). Additionally, the Ninth Circuit in William Inglis and Sons Baking v. ITT Continental Baking Co., Inc., 526 F.2d 89 (1976), has adopted an alternative test which this court has considered. That standard requires a party seeking injunctive relief to demonstrate either a combination of probable success on the merits and irreparable injury, or that important issues are raised and the balance of hardships tips sharply in his or her favor. Upon a consideration of these standards and a balancing of all relevant factors, the court concludes that plaintiffs are entitled to the limited preliminary injunctive relief delineated at the outset of this decision.

The public interest, at this moment in the litigation and for this requested relief, would appear to rest on plaintiffs' behalf. This court is mindful of the statements of purpose of the Act, 16 U.S.C. § 1361, and the opinions of the trial and appellate courts in the District of Columbia litigation that the preservation of marine mammals is of critical importance. This court concurs in that statement. However, it is virtually certain that a quota of some measure will be imposed for the calendar year 1977. Thus, it is in the best interests of both the tuna industry and the consumer that fishing "on porpoise" be allowed to commence during this, the optimum fishing season. The court is confident that the tuna industry will do all in its power to preserve porpoise; and, indeed, it is in its best interest to do so. Rapid diminution of the stocks will not only damage a valuable source for locating tuna, but will likely terminate the opportunity to fish for tuna "on porpoise" before the expiration of the calendar year.

Plaintiffs, moreover, may suffer irreparably injury if they are not allowed to commence fishing "on porpoise" in the near future. The UnitedStates is a signatory to a treaty⁸ governing the taking of yellowfin tuna from a zone in the Pacific Ocean known as the commission yellowfin regulatory area (CYRA). CYRA is universally acknowledged to be a prime location for catching yellowfin tuna. Under the treaty, the taking of yellowfin tuna by both American- and foreign-flagged vessels is limited to a prescribed number, commencing from the start of the calendar year. Although foreign-flagged vessels are now taking yellowfin "on porpoise" within CYRA, American-flagged vessels, such as plaintiffs, are proscribed from doing so. Traditionally, the number of permissible yellowfin tuna caught within CYRA is achieved by the beginning of April. If plaintiffs are deprived of the opportunity to catch yellowfin by the more effective "on porpoise" method until a permit is issued by the NMFS, either they may not have the opportunity to so fish this calendar year or the opportunity may be substantially diminished. In any event, plaintiffs' [in]ability to fish "on porpoise" in this prime location causes them irreparable hardship with each passing day.

By contrast the relative hardship to the remaining interested parties is slight. There is little doubt that some quota on the taking of porpoises will be imposed; that quota will probably fall within the range of the two recommendations aforementioned. This court has limited the quota in the interim permit to reflect a pro rata distribution of the lower quota over the initial one-third of the calandar year. It is expected by all parties that a final decision on the permit will be made by the end of April 1977. If the porpoise taken pursuant to this preliminary injunctive relief are credited to the permit eventually issued by number and species, the hardships suffered by the environmental groups and the government would be relatively slight.

The court would decline to state that plaintiffs have made a convincing showing of ultimate success on the merits. Below, the court states its rationale for denying plaintiffs' motion for summary judgment. In light of the factors mentioned above, however, the court feels that the balance tips in plaintiffs' favor and that limited injunctive relief should be granted.

Thus, this court grants the limited injunctive relief under the authority conferred by Federal Rule of Civil Procedure 65 and the general powers of equity vested in the discretion of the district court. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S. Ct. 2561, 2568 (1975); 7 Moore, Federal Practice P65.04[2] (2d Ed.). Additionally, the court finds justification for this equitable relief in the Act itself and its legislative history. The Act requires the compilation of regulations governing the taking of marine mammals based "on the best scientific evidence available." 16 U.S.C. § 1373(a). Any permits for the taking of marine mammals may be issued only upon the promulgation of those regulations. 16 U.S.C. § 1374(b). Thus, a permit may not be issued until the administrative entities charged with the promulgation of regulations under the Act have discharged their duties. Although tuna fishing by American-flagged seiners is geared towards peak performance at the outset of the calendar year when CYRA is open for yellowfin tuna gathering, it is possible that a delay in the promulgation of regulations would substantially diminish the American catch in a calendar year without substantially diminishing the taking of porpoise.⁹ Such a possibility is likely to occur in 1977, even though the administrative entities, including NMFS and the administrative law judge, have concluded that some quota should issue. It was not Congress' intent that such a result should accrue:

It is not the intention of the Committee to shut down or significantly to curtail the activities of the tuna fleet so long as the Secretary is satisfied that the tuna fishermen are using economically and technologically practicable measures to assure minimal hazards to marine mammal populations.

Marine Mammal Protection Act of 1972, Senate Commerce Committee, S. Rep. No. 92-863, 92d Cong., 2d Sess. 16 (June 15, 1972). Thus, the court finds implied in the Act, as expressed by the legislative history, an affirmative obligation on the part of the [7 ELR 20591] administrative entities charged with promulgating regulations, to promulgate those regulations ard grant or deny timely-filed applications for permits under those regulations at the outset of the calendar year.¹⁰

With respect to the timeliness of the granting or denial of permits under the act, the court finds an additional basis for the imposition of preliminary injunctive relief. An entity entrusted with the responsibility of issuing licenses (such as the permits issuable under the Act) must consider applications in a prompt manner so as not to deprive the applicant of the substantial benefit of the license merely due to delay. Slate v. McFetridge, 484 F.2d 1169 (7th Cir. 1973). In appropriate circumstances such delay would be violative of the applicant's due process right to have its property interest considered by an administrative entity "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 87 (1965). Although the court need not decide at this time whether plaintiffs have a property right in yellowfin tuna on the high seas,¹¹ it does find that they have a property interest, secured by permit or license, in the opportunity to carry on their livelihood. Such an interest may be impaired only by comporting with the strictures of procedural due process. The court finds that under the unusual circumstances of the instant case the delay in promulgating regulations and issuing permits has impaired plaintiffs' property interest in violation of due process of law, and further finds this preliminary injunctive relief to be an appropriate remedy.

III

Plaintiffs' motion for summary judgment is denied. By their motion plaintiffs seek a declaration that the Act and regulations promulgated thereunder are violative of constitutional provisions guaranteeing due process of law and the taking of property only upon payment of just compensation, and denying an overbroad delegation of legislative power. This court may grant summary judgment only if it appears that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Zweig v. Hearst Corporation, 521 F.2d 1129, 1136 (9th Cir. 1975). Counsel for the government has raised issues of material fact with respect to each of the issues set forth above. Accordingly, the moving party is not entitled to summary judgment and the motion for same is hereby denied.

Plaintiffs' motion for leave to amend its first amended complaint is granted. A comparative perusal of the first and proposed second amended complaints indicates that the only substantial differences are claims in the first amended complaint which are deleted by the proposed second amended complaint. This court is mindful of the provision of Federal Rule of Civil Procedure 15(a) that leave to amend a complaint "shall be freely given when justice so requires." This court so finds and grants plaintiffs leave to file its proposed second amended complaint. No requirements under the Federal Rules of Civil Procedure are waived by this grant of leave.

1. Recommended decision by Judge Frank W. Vanderheyden, submitted at the conclusion of hearings to consider the 1977 quota, January 17, 1977, p. 66 et seq.

2. Plaintiffs, who are not members of the ATA, were allowed to fish "on porpoise" under a certificate of inclusion to the general permit.

3. The ATA filed a related action in this court, American Tunaboat Association v. Richardson, 76-971. The two actions were consolidated for the limited purpose of determining preliminary injunctive relief. The ATA appears in this action in the capacity of amicus curiae.

4. Brief of the National Marine Fisheries Service submitted for hearings to consider the 1977 quota, December 16, 1976.

5. See note 1, supra.

6. Id., at p. 90 et seq. Fishing on "mixed schools" would allow tuna fishermen to encircle porpoise of several different species.

7. The time constraints upon the issuance of a permit under the Act are delineated in 16 U.S.C. § 1374.

8. Convention Between the United States of America and the Republic of Costa Rica for the Establishment of an Inter-America Tropical Tuna Commission (1949). The treaty was ratified and implemented by Congress, 16 U.S. § 951 et seq, with regulations promulgated thereunder appearing in 50 C.F.R. § 280 et seq.

9. Although Americans would be unable to take porpoises incident to yellowfin fishing within CYRA, foreign vessels would not be so limited. Moreover, American vessels would be able to exhaust a quota imposed late in the year without deriving the benefits of a large catch from the tuna-rich CYRA.

10. This court recognizes the difficulties faced by the Administrative entities in promulgating regulations this year. A late start in the conducting of hearings was due in large part to pending litigation.

11. In this regard see Missouri v. Holland, 252 U.S. 416, 434, 40 S. Ct. 382, 384, where Mr. Justice Holmes concluded that wild birds are in the possession and ownership of no one.