ELR Citation: ELR 20877
No(s). s. 85-5251, -5252 (D.C. Cir. Aug 6, 1985)

The court holds that the Secretary of Commerce has a non-discretionary 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 that Japan "diminish[ed] the effectiveness" of the International Convention for the Regulation of Whaling (ICRW) by continuing its whaling practices in spite of quotas set by the International Whaling Commission (IWC). The court notes that in some circumstances the Secretary does have discretion whether to certify a country under the Pelly Amendment, but that the Packwood-Magnuson Amendment amends the Pelly Amendment to the extent that certification is automatically triggered when a country's nationals harvest whales in excess of IWC quotas.

The court first holds that certification of a country for diminishing the effectiveness of the ICRW occurs under the Pelly Amendment. The purpose of the Packwood-Magnuson Amendment was to create a new sanction for ICRW certifications, not to alter the certification process established under the Pelly Amendment. Under the Pelly Amendment, there are two steps in the certification process, the first being determination of whether actions of foreign nationals are "diminish[ing] the effectiveness" of an international fishery conservation program and the second being the certification by the Secretary of that fact to the president. The court turns to legislative history and holds that the clear intent of Congress was to require certification if a nation was violating or failing to abide by the programs in question. The subsequent legislative history of the Packwood-Magnuson Amendment supports the interpretation that the Secretary has a nondiscretionary duty to certify when a foreign country exceeds internationally set fishing limits. The court distinguishes the 1978 amendments regarding the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which also use the "diminish the effectiveness" language but which apparently vest discretion in the Secretary. The court notes that the scheme set up under CITES operates totally differently from that envisioned by the Pelly Amendment, observing that while the fishery programs provide for concrete recommendations or actual quotas designating permissible limits, CITES creates no mandatory standards.

The court then rules that once the Secretary has determined that a foreign country is "diminish[ing] the effectiveness" of an international fishery conservation program, he must certify the country. The court notes that not only does the statute itself say that the Secretary "shall" certify that fact to the president, but that the legislative history is also quite clear.

Applying these conclusions to this case, the court concludes that the Secretary had a non-discretionary duty to act, that the plaintiffs have a clear right to relief, and that no other adequate remedy exists. The court therefore holds that the requirements for the writ of mandamus have been met, and that the district court was correct in issuing the writ. Lastly, the court holds that the district court did not abuse its discretion is issuing the writ in spite of the fact that issuing the writ in effect abrogated an agreement entered into by the executive branch and the Japanese government. The court recognizes that deference to the executive branch is particularly apt in the context of foreign affairs, but concludes that in this instance the agreement in question was a violation of the Secretary's statutory mandate. In a footnote, the court holds that imposition of Packwood-Magnuson sanctions in this case does not violate the due process rights of the Japanese.

The dissent disagrees with this, feeling foreign affairs is the particular reserve of the executive branch, and would forbear from deciding this case without a clear command from Congress.

[The lower court opinion appears at 15 ELR 20328.]

Counsel are listed at 15 ELR 20328.

Before WRIGHT and TAMM, Circuit Judges, and OBERDORFER,^* District Judge.