The Motor Vessel Theresa Ann v. Richardson

Civil Nos. 76-963-E; 76-971-E (S.D. Cal. November 2, 1976)

Although continuing a temporary restraining order solely to allow tuna fisherman plaintiffs to apply for appellate relief, the court denies plaintiffs' motion for a preliminary injunction restraining defendants from enforcing a limitation on the number of marine mammals that may be taken incident to fishing "on porpoise" and defendants' motion to stay or transfer the proceedings because of similar litigation pending before the federal district court for the District of Columbia. Plaintiffs have failed to demonstrate their probable success on the merits. Their potential hardship from an adverse decision is not great because other fishing methods are available, and their potential loss is only two and one-half percent of the annual catch. Also, the public interest in protecting marine mammals must be served. Regarding the motion to stay or transfer the proceedings, defendants have failed to convince the court that the balance of inconveniences is strongly in their favor or that resolution of the District of Columbia litigation would necessarily resolve the issues in the instant suits.

Counsel for Plaintiffs
Rudi M. Brewster
William N. Kammer
Richard A. Paul
Gray, Cary, Ames & Frye
2100 Union Bank Bldg.
San Diego CA 92101
(714) 236-1661

D. G. Burney
Wells Fargo Bldg., Suite 1100
1007 Fifth Ave.
San Diego CA 92101
(714) 238-0011

Counsel for Defendants
William A. Butler
Environmental Defense Fund
1525 18th St., NW
Washington DC 20036
(202) 833-1484

Michael H. Walsh
Sheela, Lightner, Hughes & Castro, P.C.
3104 Fourth Ave.
San Diego CA 92104
(714) 291-4500

Bernard Fensterwald, Jr.
McCandless & Fensterwald
1707 H St., NW
Washington DC 20006
(202) 223-1667

[7 ELR 20065]

Enright, J.:

Plaintiffs in these separate actions seek a preliminary injunction restraining the defendants from enforcing regulations which establish a quota on the number of porpoises which may be taken incident to their tuna fishing operations. Defendants seek a stay or transfer of these proceedings in light of litigation pending before the District Court for the District of Columbia.¹ Upon duly considering the oral argument of counsel and all the memoranda, exhibits and affidavits submitted in support thereof, the court does hereby deny the motions for a preliminary injunction and does further decline to exercise its discretion to stay or transfer these lawsuits. The temporary restraining order now in effect to preclude enforcement of said regulations is hereby continued until 12:00 noon November 5, 1976; this continuance is made solely for the purpose of allowing plaintiffs the opportunity to apply for appellate relief.

Although these lawsuits have not been formally consolidated, the court has entertained the motions concurrently because the relief sought in each case is identical. Resolving the matters at issue, the court has considered the memoranda and argument of counsel representing numerous environmental groups² who have moved to intervene as defendants in these lawsuits for the limited purpose of opposing the motions for a preliminary injunction. The court has granted them status as intervenors of right under Federal Rule of Civil Procedure 24(a).

1. Preliminary Injunction

The motions for a preliminary injunction restraining defendants from enforcing a limitation on the number of marine mammals that may be taken incident to fishing on porpoise is denied. The concerns which this court held when it granted such relief in the form of a ten-day temporary restraining order on October 21, 1976 have been alleviated. This court has been provided with authorities on the issue of a stay or transfer of these proceedings, all interested parties have been afforded an opportunity to appear, and the court has been fully apprised of the relevant procedural and legal activities preceding this litigation.

The court is cognizant of the several factors to be weighed when considering the propriety of preliminary injunctive relief: probability of ultimate success on the merits, the relative hardships [7 ELR 20066] of the parties involved, irreparable injury asserted by the party seeking relief, and the public interest. Friends of the Earth, Inc. v. Coleman, 518 F.2d 323 [5 ELR 20428] (9th Cir. 1975); see also, William Inglis and Sons Baking v. ITT Continental Baking Co., Inc., 526 F.2d 86 (9th Cir. 1976). Weighed together, these factors persuade the court that the injunctive relief should not be granted. Although this decision is neutral on the merits of the ultimate claims for relief, the court finds that plaintiffs have not demonstrated the probability of ultimate success on the merits to justify this extraordinary relief. This court has serious reservations on plaintiffs' contentions that defendants did not meet statutory procedures for promulgating and modifying the regulations which imposed the instant quota.³ A probability of success was likewise not established for the constitutional claims asserted.

Several facts indicate that the potential hardship suffered by plaintiffs is not of the magnitude to justify the continued taking of porpoises and the further restraint of the congressional mandate. First, the denial of injunctive relief at this time serves only to restrict one mode of tuna fishing⁴ until the general permit under which all plaintiffs operate expires on December 31, 1976. Second, it is apparent from affidavits submitted to the court, as well as evidence adduced in the District of Columbia litigation, that a great quantity of tuna is captured each year by methods other than incident to porpoise. See, e.g., Committee for Humane Legislation, Inc. v. Richardson, 414 F. Supp. 297, 300 [6 ELR 20500] (D.D.C. 1976). Finally, affidavits on file indicate that the industry has made this year the largest catch yet recorded, and that based on past seasonal performance, would lose but approximately 2 1/2 percent of its annual tuna catch if fishing on porpoise were proscribed for the remainder of the calendar year.

The public interest, finally, is expressed through the statements of purpose of the Marine Mammal Protection Act, 16 U.S.C. § 1361, and the opinions of the trial and appellate courts in Committee for Humane Legislation, supra: preservation of marine mammals is of critical importance. This decision is in no way intended to impugn the pioneer efforts of the tuna industry to reduce the taking of porpoises. Certainly the industry was the first to recognize its dependence on the porpoise relative to this technique of fishing. The destruction of the porpoise would seriously limit the industry's ability to find and catch tuna. However, Congress has enacted the Marine Mammal Protection Act, which authorizes the National Marine Fisheries Service to impose stricter standards of performance. Congress had to be aware of the financial impact on the tuna industry when it passed this legislation.

Accordingly, these factors combined persuade the court that the motions for a preliminary injunction should be denied.

2. Stay or Transfer of Proceedings

This court has inherent discretion to stay these lawsuits pending resolution of the litigation pending in the District of Columbia, Landis v. North American Co., 299 U.S. 248, 254-55 (1936), or to transfer these actions to the District of Columbia "for the convenience of parties and witnesses, in the interest of Justice." 28 U.S.C. § 1404(a). The court declines to exercise that discretion for either stay or transfer.

The issues for resolution in the instant lawsuits will not be resolved by a disposition of the District of Columbia litigation as it now stands, so a stay of these lawsuits would be nonproductive. That action was finally decided as to all issues raised, except a narrow issue on remand pertaining to a delineation by species in the quota.⁵ The court has been informed, however, that the parties to that litigation have been invited to raise additional issues, which may duplicate the issues before this court. Even if such duplication were to occur, this court is not persuaded that these plaintiffs should be deprived of their choice of forum for the issues first raised here. On the issue of transfer under § 1404(a), the court is mindful of the admonition of Mr. Justice Jackson in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) that unless the balance of inconvenience "is strongly in favor of defendant, the plaintiff's choice of forum should rarely be disturbed." Defendants have not made such a showing.

This court appreciates the willingness of the District Court for the District of Columbia to proceed with resolution of the issues presented here at the request of some of the parties.It is also aware of the potential judicial economy attendant to the efforts by that court. In that regard, this court would invite the parties to utilize the pretrial procedures for multidistrict litigation under 28 U.S.C. § 1407. However, for the reasons aforementioned, this court would decline to stay or transfer these actions to the District of Columbia.

1. Committee for Humane Legislation, Inc. v. Richardson, 414 F. Supp. 297 (D.D.C. 1976), aff'd in part and remanded, __ F.2d __ (D.C. Cir. No. 76-1479 [6 ELR 20661] Aug. 6, 1976).

2. Appearing for argument were counsel for the Environmental Defense Fund and the Committee for Humane Legislation, Inc., representing the plaintiffs in the pending litigation in the District of Columbia.

3. The court need not actually decide at this time, however, whether defendants have complied with the procedural requirements of the Administrative Procedure Act, 5 U.S.C. § 553, or the Marine Mammal Protection Act, 16 U.S.C. § 1373(e) and 1374(e). Neither does the court decide at this time the constitutional validity of the Act, the validity of a general permit, or the ability to use this fishing technique in 1977.

4. Plaintiffs are restricted only from fishing "on porpoise" for yellowfin tuna; but this does not preclude plaintiffs from engaging in "school" fishing for skipjack tuna, for example.

5. Supra, note 1, slip op. at p. 20.