ELR Citation: ELR 20843
No(s). 90-16581 (9th Cir. Apr 11, 1991)

The court affirms the district court's issuance of a preliminary injunction banning the importation into the United States of yellowfin tuna from Mexico under the Marine Mammal Protection Act (MMPA). Under the MMPA, the Secretary of the Treasury is required to ban imports of yellowfin tuna products from a foreign nation until the Secretary of Commerce certifies that nation's incidental kill rate of dolphins is comparable to that of the United States. The MMPA specifies that the total incidental kill rate of a foreign nation harvesting tuna in the eastern tropical Pacific Ocean will not be found comparable to the U.S. rate unless it is no more than 2.0 times the total incidental kill rate of the U.S. fleet and the total number of eastern spinner dolphins killed by the vessels of a harvesting nation does not exceed 15 percent of the total number of mammals killed by those vessels. Under regulations promulgated by the National Marine Fisheries Service (NMFS), the Secretary of Commerce may reconsider an embargo imposed on a nation whose incidental kill rate for a given year exceeds the statutory limits and may certify compliance with the statute based on data for only the first six months of the following year. Pursuant to this regulatory provision, the NMFS lifted a court-ordered embargo on Mexican tuna products.

The court first holds that the NMFS' reconsideration provision is not within the discretion delegated to the government under the MMPA, because it conflicts with the language of the statute. The MMPA requires findings to be based on a full year's data. The court refuses to uphold the provision as a matter of policy, finding that it does not offer an incentive to foreign countries to speed up their efforts to meet the statutory standards. The record demonstrates that the provision allows foreign nations and the NMFS to withhold the release of negative findings until they have a subsequent set of positive findings, as occurred in the case of Mexico, thus circumventing the intent of Congress. The court finds that the NMFS' own record of nonenforcement of the Act prior to the Act being amended in 1988 belies the contention that the Agency seeks only to provide additional incentives consistent with Congress' intent.

[A related decision is published at 21 ELR 20259.]

Counsel for Appellants
Albert M. Ferlo
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellees
Joshua R. Floum
Heller, Ehrman, White & McAuliffe
333 Bush St., San Francisco CA 94104-2878
(415) 772-6000

Schroeder, J. (before Canby and Noonan, JJ.):