32 ELR 20571 -- Turtle Island Restoration Network v. Evans

Turtle Island Restoration Network v. Evans

Nos. 00-1569 et al. (284 F.3d 1282) (UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT March 21, 2002)

ELR Digest

The court reverses the Court of International Trade's holding that the U.S. government's decision to permit the importation of shrimp caught by turtle excluder devices (TEDs) from uncertified nations is not in accordance with international law, but affirms the court's denial of injunctive relief and attorneys fees to an environmental group challenging the government's position. The court first holds that the government's regulations are permissible. Section 609(b) of Public Law No. 101-162 does not prohibit importation of all shrimp or shrimp products from a country not certified under the statute; the government may permit the import of individual shipments from uncertified countries if exporters represent that those particular shipments were caught without the use of commercial fishing technology that may adversely affect sea turtles protected by domestic law. The plain language of the statute provides no basis for embargoing shipments of shrimp that have not been harvested with commercial fishing technology that may harm sea turtles. Because TED-caught shrimp have not been harvested with commercial fishing technology that may harm sea turtles, the statutory language does not support embargoing TED-caught shrimp from uncertified countries. Moreover, if certification under § 609(b) was the only way shrimp could be imported into the United States, then language in the statute prohibiting shrimp that may have been harvested with commercial fishing technology that may adversely affect sea turtles is largely superfluous. Additionally, nothing in the legislative history supports the group's conclusion that the statute must be applied on a nation-by-nation basis or that the principal goal of the statute is the protection of endangered sea turtle species worldwide. The court, therefore, also holds that the group is not entitled to an injunction or attorneys fees under the Equal Access to Justice Act.

A dissenting judge would uphold the Court of International Trade's decision.

The full text of this decision is available from ELR (38 pp., ELR Order No. L-487).

Counsel for Plaintiffs
Joshua R. Floum
Legal Strategies Group
5905 Christie Ave., Emeryville CA 94608
(510) 450-9600

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

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]