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Earth Island Inst. v. Christopher

ELR Citation: 23 ELR 21553
Nos. No. 92-16544, 6 F.3d 648/(9th Cir., 10/01/1993)

The court holds unconstitutional the requirement in §609(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Appropriations Act of 1990 that the executive branch initiate discussions with foreign nations to develop treaties to protect sea turtles, and holds that the Court of International Trade (CIT) has exclusive jurisdiction over suits to enforce §609(b) of the Act. Section 609(b) prohibits the importation of shrimp and shrimp products from nations not certified by the federal government as having sea turtle conservation programs and rates of "taking" sea turtles comparable to those of the United States. The court holds that it lacks jurisdiction over plaintiffs' §609(b) claim under the U.S. Supreme Court's decision in K Mart Corp. v. Cartier, Inc., 485 U.S. 176 (1988). In K Mart, the Court held that the CIT did not have jurisdiction over a challenge to the importation of foreign goods violating U.S. trademark law, because no "embargo" existed within the meaning of §1581(i) of the Customs Courts Act of 1980. In this case, a governmental ban exists that meets the K Mart definition of "embargo." The court further holds that §609(a) violates the U.S. Constitution's separation-of-powers doctrine, because it intrudes on the conduct of foreign relations by the executive branch.

A dissenting judge would hold that the CIT has exclusive jurisdiction over both the §609(a) and (b) claims.

[Appellate briefs in this litigation are published at ELR PEND. LIT. 66253.]

Counsel for Plaintiffs-Appellants
Deborah A. Sivas
Heller, Ehrman, White & McAuliffe
333 Bush St., San Francisco CA 94104
(415) 772-6000

Counsel for Defendants-Appellees
Albert M. Ferlo Jr.
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Intervenor-Appellee
Eldon V.C. Greenberg
Garvey, Schubert & Barer
1000 Potomac St. NW, 5th Fl., Washington DC 20007
(202) 965-7880

Before Brunetti and King,* JJ.