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Balelo v. Klutznick

ELR Citation: 12 ELR 20040
Nos. No. 80-1646-GT(H), 519 F. Supp. 573/(S.D. Cal., 07/24/1981)

The district court rules that a regulation promulgated pursuant to the Marine Mammal Protection Act (MMPA) authorizing the placement of federal observers on tuna fishing vessels violates the MMPA and the Fourth Amendment. Under the regulation, federal observers are stationed aboard tuna vessels to collect information regarding porpoise stocks and species and the vessel's compliance with regulations governing tuna fishing and associated porpoise mortality. Initially, the court rules that the government agents' entry and presence on board the vessels constitutes a search under the Fourth Amendment. The regulation violates §107 of the MMPA since it purports to authorize searches of tuna vessels without a warrant and without reasonable cause to believe that the vessel or a person on board is in violation of the Act or regulations. The court refuses to find implied authority for the regulation in the Act since such authority court refuses to find implied authority for the regulation in the Act since such authority would contravene the Act's express language and since explicit congressional authorization is required where agency action affects substantial constitutional rights or is of questionable constitutionality. In addition, the regulation violates the Fourth Amendment since it purports to authorize a warrantless search that does not fall within any of the exceptions to the warrant requirement, including the "pervasively regulated industry" exception.

Counsel for Plaintiffs
Raymond F. Zvetina
Haskins, Nugent Newnham, Kane & Zvetina
110 West C St., Suite 2300, San Diego CA 92101
(714) 236-1323

Counsel for Defendant
Donald A. Carr
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2750

Counsel for Intervenors Environmental Defense Fund, Inc. et al.
Wayne S. Braveman
Tuttle & Taylor, Inc.
13th Floor, 609 S. Grand Ave., Los Angeles CA 90017
(213) 683-0600