ELR Citation: ELR 20259
No(s). C-88-1380-TEH (N.D. Cal. Aug 28, 1990)

The court holds that environmental groups are entitled to a preliminary injunction to halt the importation into the United States of commercial yellowfin tuna or yellowfin tuna products harvested by any foreign nation with purse seine nets in the eastern tropical Pacific until the Secretary of Commerce finds that the average rate of incidental taking by vessels of that nation is no more than 2.0 times that of U.S. vessels during the same period. The court first holds that plaintiffs have shown a likelihood of success on the merits. The Marine Mammal Protection Act (MMPA) provides that the Secretary of the Treasury must ban the importation of yellowfin tuna caught with purse seines by vessels of a foreign nation unless the Secretary of Commerce finds that the average incidental taking rate of marine mammals by that nation is "comparable" to the average rate of U.S. vessels. As of the end of 1989, the statute prohibits the Secretary of Commerce from finding that a foreign nation's average incidental marine mammal taking rate is "comparable" to the U.S. rate unless it is no more than 2.0 times that of U.S. vessels. Nearly nine months into the 1990 fishing season, no comparability findings have been made. Although the Secretary of Commerce has not analyzed the data on the incidental taking rates of foreign vessels for the entire 1989 calendar year, the statute does not require that the Secretary compare data for the entire year. He need only compare data on the U.S. and foreign rates for the same period. Although the Department of Commerce's established policy requires submission of data for a given year before July 31 of the following year, Congress rejected that policy in the 1988 amendments to the MMPA. The statute places the burden on the countries submitting data to produce documentary evidence in sufficient time to allow the Secretary to make the taking rate comparability finding.

The court next holds that plaintiffs are not entitled to a preliminary injunction to halt the importation into the United States of tuna from foreign countries unless the Secretary of Commerce first finds that the total number of eastern spinner dolphins incidentally taken by vessels of the harvesting nation during the 1989 fishing season did not exceed 15 percent of the total number of all marine mammals incidentally taken by such vessels in 1989 and that the total number of coastal spotter dolphin incidentally taken by such vessels in the 1989 fishing season did not exceed two percent of the total number of all marine mammals incidentally taken by such vessels in 1989. The court holds that plaintiffs have demonstrated neither a probability of success on the merits nor that serious questions are raised as to the merits of this issue. Unlike the MMPA's incidental taking provision, the MMPA's provision on the percentage of certain species included in takings does not require that the new standard go into effect by the end of the 1989 fishing season. It requires that the new standard be applied to data from the entire 1989 fishing season, and information for the entire 1989 calendar year could not be available until sometime after the beginning of 1990. Since the Department of Commerce's established policy requires submission of annual data on marine mammal takings by July 31 of the following year, it seems likely that Congress intended for that deadline to remain in effect.

The court next holds that plaintiffs have demonstrated a possibility of irreparable injury if an injunction is not issued. Without the injunction, foreign nations that continue to import yellowfin tuna into the United States may continue to engage in purse seine fishing. This is exactly the type of injury that the statute was designed to prevent. The court further holds that even by balancing the hardships, plaintiffs prevail. The purely economic harm suffered by foreign fishing interests as a result of enforcement of the MMPA is outweighed by the interests of the marine mammal populations at stake.

Counsel for Plaintiffs
Wondie Russell, Elisabeth A. Robinson, Geoffrey R. Kors
Heller, Ehrman, White & McAuliffe
333 Bush St., San Francisco CA 94104-2878
(415) 772-6000

Counsel for Defendants
Rogert J. Marzulla, Ass't Attorney General; James C. Kilbourne, Charles W. Brooks
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

C. Hugh Friedman
Lorenz, Alhadeff, Lundin & Oggel
101 W. Broadway, 15th Fl., San Diego CA 92101
(619) 231-8700

David G. Burney, John A. Hodges
Wiley, Rein & Fielding
1776 K St. NW, Washington DC 20006-2359
(202) 429-7000