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Balelo v. Baldrige

ELR Citation: 13 ELR 20203
Nos. Nos. 81-5806, -5807, (9th Cir., 01/05/1983) Aff'd

The court, reversing in part the district court decision, 12 ELR 20040, invalidates Department of Commerce regulations that require tuna fishermen to carry inspectors on their boats as a condition to receiving Marine Mammal Protection Act (MMPA) permits allowing the incidental taking of porpoises. The court holds that the stationing of inspectors on boats constitutes a search, rejecting the Secretary's argument that the plain view doctrine applies since the fishing operations occur in waters open to the public. Without ruling whether the observer program is constitutional, the court rules that such a program of suspect, warrantless searches must have express congressional authorization. Congressional acquiescence is insufficient. Furthermore, the court rules that the program does not fall within the pervasively regulated industry exception to the warrant requirement. The court holds that the inspection program would be invalid even if, as the district court had ordered, the inspectors were limited to collecting scientific data.

The dissent would find that the tuna industry is pervasively regulated. Also, because the Secretary cannot effectively enforce the MMPA without inspections, the dissent would find implicit authorization for the searches in the Act.

Counsel for Appellants
James Lorenz, Ass't U.S. Attorney
940 Front St., San Diego CA 92819
(619) 895-5662

Donald A. Carr
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7378

Counsel for Appellants-Intervenors
Wayne S. Braveman
Tuttle & Taylor
609 S. Grand Ave., Los Angeles CA 90017
(213) 683-0600

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

Before ELY, GOODWIN, and WALLACE, Circuit Judges.