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Humane Soc'y Int'l v. Clinton

ELR Citation: 31 ELR 20394
Nos. No. 99-1360, 236 F.3d 1320/(Fed. Cir., 01/04/2001)

The court upholds a Court of International Trade (CIT) decision denying an animal rights group's request to issue a writ of mandamus directing the U.S. president to impose import restrictions on Italy for violating the Driftnet Fishing Act, and denying their request for an order requiring the Secretary of Commerce to rescind his certification that Italy terminate large-scale driftnet fishing. In 1995, the CIT held that the Secretary of Commerce abused his discretion under the Driftnet Act by failing to identify Italy as a nation illegally conducting driftnet fishing. Pursuant to the Driftnet Act, the president was notified of Italy's violations, and consultations were conducted during which Italy agreed to terminate driftnet fishing. Thereafter, the Secretary of Commerce certified in 1997 that Italy had terminated driftnet fishing. Subsequently, the group alleged that illegal Italian driftnet fishing continued and, consequently, the president should be ordered to impose sanctions on Italy and that the Secretary of Commerce's certification should be rescinded. The CIT held that the Secretary's refusal to identify Italy as in violation of the Driftnet Act based on new evidence was arbitrary and capricious, and ordered the Secretary to identify Italy as a nation for which there is reason to believe that it is conducting large-scale driftnet fishing. The CIT. however, refused to grant the group's requested relief, and the group appealed.

The court first holds that the president and other executive officers are not immune from suit under the doctrine of sovereign immunity. The Driftnet Act's grant of jurisdiction to the CIT carries with it a coextensive waiver of sovereign immunity that subjects the president and executive officers to suit under the Act. The court next holds, however, that the CIT was correct in finding that it cannot issue a writ of mandamus. The question of whether consultations were "satisfactorily concluded," and thus whether the requirement for import sanctions were triggered, is a matter that lies within the broad discretion of the president. Further, nothing in the facts of this case suggests that the president acted in other than good faith or otherwise was in violation of his duties under the Driftnet Act. The court also holds that the Secretary of Commerce's certification was not arbitrary and capricious. Evidence supported the Secretary's determination that the agreement with Italy to stop driftnet fishing, although not fully implemented, was substantially so, and that adequate assurances had been given that it would be completed before the 1997 fishing season. The fact that there may have been some individual violations by Italian vessels would not be determinative.

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

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

Before Clevenger and Rader, JJ.