ELR Citation: ELR 20990
No(s). C 88 1380 TEH (N.D. Cal. Feb 3, 1992)

The court rules that the Marine Mammal Protection Act (MMPA) bans the importation into the United States of all yellowfin tuna and tuna products from intermediary nations that fail to provide certification and proof to the U.S. government that they have banned importation into their countries of tuna that may not be imported directly into the United States from harvesting countries. The court preliminarily enjoins the Secretaries of Commerce and the Treasury, the Administrator of the National Oceanic and Atmospheric Administration, and the Assistant Administrator of the National Marine Fisheries Service from allowing the importation of tuna into the United States in violation of its ruling. The court holds that plaintiff environmental organizations have met their burden of demonstrating probable success on the merits. The court holds that the language of MMPA §101(a)(2)(C) is clear that the statute's certification and proof requirements apply to any intermediary nation. The court also holds that the plain meaning of the statute requires intermediary nations to ban the importation of products from the harvesting nations that are banned from direct import into the United States. The court holds that the sanction for an intermediary nation's failure to comply with the mandates of the statute is a ban against all yellowfin tuna and tuna products from the intermediary nation. The court holds that since the defendants admit that they are allowing the importation of tuna that was harvested with purse seines in the eastern tropical Pacific Ocean from noncompliant intermediary nations, they are in violation of the plain language of the MMPA. The court holds that the intermediary nation embargo is overcome by an intermediary nation's certification and proof that it has prohibited the importation of certain tuna and tuna products, not by evidence that a nation does not import tuna from embargoed nations or by evidence that the nation has discontinued the importation of tuna from embargoed nations. The court further holds that the defendants' failure to implement the intermediary nation embargo results in irreparable injury, because the defendants' nonenforcement of the embargo creates a loophole in the embargo on direct importation, and this results in the continued economic viability of harmful fishing technologies. This in turn results in the unnecessary death of marine mammals, which is the type of harm that the statute was designed to prevent.

The court holds that the plaintiffs are not entitled to a permanent injunction, because they have not yet prevailed on the merits, and they have not proven that the defendants' misconduct will continue in the absence of permanent injunctive relief. The court denies the plaintiffs' motion for summary judgment, because genuine issues of material fact exist. Whether diplomatic communications of the U.S. Department of State regarding the intermediary nation embargo contain evidence of the necessary intermediary nation certifications is a contested factual question. The court instructs the defendants to immediately implement a program to enforce the intermediary nation embargo in accordance with the MMPA, and in the interest of fairness to American companies that have already purchased foreign tuna, orders that its preliminary injunction apply to all yellowfin tuna and tuna products exported from intermediary nations after January 30, 1992.

[Previous decisions in this litigation are published at 21 ELR 20259 and 20843.]

Counsel for Plaintiffs
Wondie Russell
Heller, Ehrman, White & McAuliffe
333 Bush St., San Francisco CA 94104
(415) 772-6000

Counsel for Defendants
William T. McGivern
U.S. Attorney's Office
450 Golden Gate Ave., PO Box 36055, San Francisco CA 94102
(415) 556-1126