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Humane Soc'y of the United States v. Brown

ELR Citation: 26 ELR 21183
920 F. Supp. 178/(Ct. Int'l Trade, 02/16/1996)

The court holds that the Secretary of Commerce violated §101(b)(1)(B) of the High Seas Driftnet Fisheries Enforcement Act (Driftnet Act) by failing to identify Italy as a nation whose nationals or vessels may be conducting large-scale driftnet fishing in international waters. Section 101(b)(1)(B) requires that whenever the Secretary of Commerce has "reason to believe" that the nationals or vessels of any nation are conducting large-scale driftnet fishing beyond the exclusive economic zone of any nation, the Secretary must identify that nation and notify the president and that nation of the identification. The Secretary is also, in consultation with the Secretary of State, to publish a list of nations so identified. The court first holds that the Secretaries' actions are subject to de novo review. The court's rule limiting review to the administrative record assumes administrative action leading to a determination with appropriate reference to the Federal Register, which was lacking here. The court also holds that because the Secretaries have not formally controverted any part of the facts alleged by plaintiffs, groups and individuals interested in protecting whales and dolphins, all facts are deemed admitted. The court next holds that the Secretary of Commerce's standard for identifying nations exceeds §101(b)(1)(B)'s "reason to believe" requirement. There is a wide difference between belief and knowledge, yet the Secretary's standard contemplates not only actual knowledge of the forbidden activity, but also "specific corroboration" and "reliable, well-documented reports" and "confirmed, verified sightings." The court finds that the documents and materials that the Secretaries produced give an ordinarily intelligent person reason to believe that Italians continue to engage in large-scale driftnet fishing in the Mediterranean Sea. The court holds that identification of Italy under §101(b)(1)(B) has been unlawfully withheld and unreasonably delayed, and that the Secretary of Commerce's decision not to make such an identification was an abuse of discretion and not in accordance with the Driftnet Act within the meaning of §706 of the Administrative Procedure Act.

The court next holds that plaintiffs' facts with respect to standing are deemed admitted, because the Secretaries have not filed a counter statement. The court grants two plaintiff individuals leave to file supplemental declarations. The declarations are neither untimely nor irrelevant, given the nature of the relief for which the plaintiffs pray, as well as the Secretaries' concomitant, continuing demand that any injury to plaintiff's be both "imminent" and "concrete." The court next rejects the Secretaries' contention that one of the individuals lacks standing because he is not a U.S. citizen. The court notes that in enacting the Driftnet Act, Congress relied on the U.N. call for a worldwide moratorium on large-scale driftnet fishing on the high seas. The court holds that it borders on the disingenuous for the government to insinuate that the plaintiffs are not within the worldwide zone that Congress strove to create and that enforcement of the Driftnet Act's prohibition on large-scale driftnets has been so efficacious as to eliminate any harm to the species of concern. The court next holds that the unrefuted facts that plaintiffs allege indicate that they are harmed by the diminishing numbers of dolphins and whales in and around the Mediterranean Sea as a result of the extremely high kill levels attributed to the Italian swordfish driftnet fishery. The court also holds that the unrefuted facts tend to show that enforcement of the Driftnet Act will diminish, if not eliminate, the harm to such creatures and their plaintiff observers. The kind of enforcement provisions adopted can be and are effective in furtherance of underlying conservation policies. The court grants summary judgment to plaintiffs and orders the parties to present a proposed form of final judgment in conformity with the court's opinion.

Counsel for Plaintiffs
Patti A. Goldman
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

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