Jump to Navigation
Jump to Content

Earth Island Inst. v. Christopher

ELR Citation: 27 ELR 20408
Nos. 94-06-00321, 942 F. Supp. 597/(C.I.T., 10/08/1996)

The court holds that the U.S. Departments of State and Commerce may not allow entry into the United States of any shrimp or products from shrimp harvested in the wild by citizens or vessels of nations that have not been certified in accordance with §609 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1990. The State Department guidelines implementing §609 imposed an embargo on shrimp products from all nations that the United States has not certified as protecting and incidentally taking endangered sea turtles to an extent comparable to the United States. In order to be certified, affected nations must require the use of turtle excluder devices (TEDs) on all their shrimp trawl vessels, as the United States does. But the guidelines also allowed the importation of shrimp and shrimp products from uncertified nations if the nation of origin certified that the shrimp was harvested in a manner that does not adversely affect sea turtles. The court holds that although §609(b)(1) allows importation of shrimp harvested with commercial fishing technology that does not adversely affect sea turtles, that paragraph is specifically contingent upon the certification procedures established by §609(b)(2). The court notes that the requirement of TEDs on all vessels of a harvesting nation at all times results in a satisfactory rate of incidental taking of sea turtles. Requiring anything less than is comparable to the U.S. program violates §609.

The court next denies one plaintiff environmental group's claim under the Endangered Species Act (ESA) and the Equal Access to Justice Act for expenses and costs for time it spent rendering expert and other assistance to the litigation effort that allegedly would otherwise have been contracted out by the group's counsel and charged to the group's account. The law fashioning the shifting of the financial burden of suing has not developed to such a degree as to provide prevailing plaintiffs with cash for their own purposes. In the absence of actual attorneys expense, there can be no court-ordered reimbursement. The court next rejects defendants' contention that because plaintiffs did not sue pursuant to the ESA, the court lacks jurisdiction to award fees under the ESA. The district court complaint that plaintiffs served on the Secretaries of State and Commerce more than 800 days before this case commenced satisfies the ESA's 60-day notice requirement. And it is disingenuous for the government to continue to pretend that §609, which is codified as a note to the ESA provision on international cooperation, belongs to a part of the U.S. Code other than the ESA. The court holds that the ESA governs plaintiffs' application for fees. The court next holds that all the plaintiffs may recover reasonable attorneys fees and expenses for their effort as a whole, beginning in the district court, even though the Ninth Circuit dismissed their suit due to the Court of International Trade's exclusive jurisdiction. Plaintiffs served the public interest by assisting in the interpretation and implementation of §609, and that assistance began in the district court and then in the Ninth Circuit. That the action was not formally transferred to this court does not mean that the proceedings have not been a continuum from the beginning. Finally, the court grants plaintiffs reasonable attorney fees and expenses in the total amount of $340,467.

[The Ninth Circuit's opinion is published at 23 ELR 21553.]

Counsel for Plaintiffs
Joshua R. Floum
Heller, Ehrman, White & McAuliffe
333 Bush St., San Francisco CA 94104
(415) 772-6000

Counsel for Defendants
Eileen Sobeck, Christiana P. Perry
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000