ELR Citation: ELR 20328
No(s). 84-3414 (D.D.C. Mar 5, 1985)

The court holds that the Secretary of Commerce violated his nondiscretionary duty under the Pelly Amendment to the Fisherman's Protective Act and the Packwood-Magnuson Amendment to the Fishery Conservation and Management Act to certify Japanese sperm whaling in violation of an International Whaling Commission (IWC) quota. The court rules that when a nation intentionally takes whales in excess of established IWC quotas, it necessarily "diminishes the effectiveness of" an international whaling treaty, thereby triggering the certification process and its accompanying sanctions against the offending nation.

The court rules that the Secretary may not permit a nation to violate IWC quotas without facing the consequences of the statutes. In its analysis of whether the Secretary acted within his discretion when he determined that Japan's IWC quota violations would not diminish the effectiveness of the International Convention for the Regulation of Whaling (Convention) if Japan would eventually comply with the quota, the court finds the language of the statute ambiguous and turns to the legislative history and administrative interpretation of the Amendments. The court finds that the legislative history supports mandatory certification. Violation of quotas established under international fisheries agreements was the specific wrong to which Congress intended both amendments to apply. The primary purpose of the certification and sanction mechanism is to penalize nations that evade the conservation measures by invoking exemption privileges. Also, the Department of Commerce has consistently taken the position that violation of international quotas necessarily diminishes the effectiveness of the applicable fisheries program.

The court next rules that whether a valid Japanese objection pursuant to the Convention precludes certification and whether the quota is illegal in Japan are irrelevant to the issue of the Secretary's non-discretionary duty. The statutes apply to any nation that diminishes the effectiveness of the Convention, regardless of the nation's own view of the propriety of the quotas. Addressing two Administrative Procedure Act arguments, the court holds that a hearing is not required in the certification process and the Department of Commerce is not required to issue interpretive regulations for these statutes. The court goes on to rule that the Convention does not take precedence over the Pelly and Packwood-Magnuson Amendments, which also do not conflict with the Convention, and this case of statutory interpretation is not subject to initial agency consideration under the primary jurisdiction doctrine.

The court concludes that the three-pronged test for mandamus relief is met: plaintiffs have a clear right to relief, defendants have a clear duty to act, and there is no other adequate remedy. The court orders the Secretary to certify the Japanese IWC quota violations and permanently enjoins the Secretaries of Commerce and State from agreeing not to certify any future violations.

Counsel for Plaintiffs
William D. Rogers, James A. Beat, John F. Libby
Arnold & Porter
1200 New Hampshire Ave. NW, Washington DC 20036
(202) 872-6700

Counsel for Defendants
F. Henry Habicht II, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Peter H. Flournoy
Office of the Legal Counsel
Department of State, Washington DC 20520
(202) 632-1989

Robert McManus, General Counsel
National Oceanic and Atmospheric Administration
Department of Commerce, Washington DC 20235
(202) 377-4080

Counsel for Defendant-Intervenors
Scott C. Whitney, Steven R. Perles
1320 19th St. NW, Washington DC 20036
(202) 833-2170