ELR Citation: ELR 20552
No(s). 84-3414 (D.D.C. Nov 18, 1987)

The court holds that the plaintiffs have not shown misrepresentation, newly discovered evidence, or manifest injustice warranting relief from a Supreme Court decision. The Court had held that the Secretary of Commerce has discretion under the Magnuson Fishery Conservation Management Act to decide that Japan's commercial whaling in contravention of an international moratorium does not diminish the effectiveness of the International Convention for the Regulation of Whaling and therefore may choose not to certify Japan for economic sanctions, but rather to rely on an executive agreement in which Japan pledged to cease commercial whaling. The court first holds that plaintiffs' motion for relief from judgment is ripe for review, although no whaling has occurred since the judgment. The court next holds that even if Japan misrepresented its intentions regarding cessation of commercial whaling, the Secretary of Commerce has discretion to consider alternatives to certification. The Supreme Court's decision rested not on a certainty that Japanese commercial whaling would cease, but on a finding that the Secretary could reasonably conclude that it would cease. The court rejects plaintiffs' allegations that Japanese proposals regarding subsistence and research whaling are disguised efforts to continue commercial whaling, and therefore that Japan misrepresented its intent to cease commercial whaling. The court also holds that the research and subsistence proposals are not newly discovered evidence, since the plaintiffs and the Supreme Court knew of these proposals prior to judgment. Even if Japan's research program is an attempt to disguise continued commercial whaling, it is the responsibility of the Secretary of Commerce to expose the sham. Evidence that Japan is refurbishing some of its commercial whaling ships as research whaling ships would not have changed the Supreme Court's decision because that decision addressed only commercial whaling, not subsistence or research whaling. Finally, the court holds that no extraordinary circumstances justify relief to avoid manifest injustice. No error was caused by the parties' failure to make key facts known. Any misrepresentation was to the Secretary of Commerce, not to the Supreme Court.

[The Supreme Court's decision is published at 16 ELR 20742. Other decisions from this litigation appear at 15 ELR 20328 and 20877]

Counsel for Plaintiffs
William D. Rogers, Ann E. Misback, Barbara E. Palmer, Daniel C. Esty, Arnold & Porter
1200 New Hampshire Ave. NW, Washington DC 20036 (202 872-6700
Counsel for Defendant
Raymond B. Ludwiszewski, Assoc. Deputy Attorney General
Office of the Department of the Attorney General
Department of Justice, Washington DC 20530
(202) 633-2756