Humane Society Challenges President’s Decision

Humane Society v. Clinton, 236 F.3d 1320 (Fed. Cir. 2001).

April Roberts, 3L

In January, the United States Court of Appeals for the Federal Circuit refused to order the President of the United States to impose sanctions on a foreign nation pursuant to the High Seas Driftnet Fisheries Enforcement Act1 (Act). The court also found that the Act carries an implied waiver of sovereign immunity and that actions of the Secretary of Commerce in issuing a certification under the Act is subject to judicial review. The appeal filed by the Humane Society of the United States, the Humane Society International, and the Defenders of Wildlife, (Plaintiffs) stems from the judgment of the United States Court for International

Trade denying the issuance of a writ of mandamus2 directing the President of the United States (President) to impose sanctions as a form of punishment on Italy for its violations of the High Seas Driftnet Fisheries Enforcement Act. In addition, the appeal charges that the lower court erred in finding that actions by the Secretary of Commerce were not arbitrary and capricious.

High Seas Fisheries Enforcement Act
The use of large-scale high seas driftnets is an effective but highly controversial means of catching fish. Driftnets usually consist of miles of webbing deployed at night and allowed to float with the currents with the purpose of entangling fish. Because these nets are suspended in the water vertically by buoys and weights, they act as a large fence. This fence tends to entrap all marine life it comes into contact with resulting in the drowning deaths of many air-breathing mammals, such as whales, dolphins, and sea turtles.

The United Nations sought to end the use of large-scale high seas driftnets by calling for a worldwide moratorium on their use, and Congress responded by passing the High Seas Driftnet Fisheries Enforcement Act in 1992. The Act establishes a method by which foreign states that use driftnets may be subject to sanctions, including denial of U.S. port privileges. Under the Act, the Secretary of Commerce identifies foreign countries that use large-scale driftnets. The President may then enter into negotiations with the country to reach an agreement to terminate the illegal fishing methods. If the negotiations are unsatisfactory, the President may direct the Secretary of the Treasury to prohibit that country’s fish and fish products from entering the United States. Furthermore, the Act instructs the Secretary of Commerce to periodically publish a list of the foreign nations identified as violating the Act and instructs the Secretary of the Treasury to deny port privileges to those nations. The denial of port privileges is only lifted when the Secretary of Commerce certifies to both Congress and the President that the countries have ceased their illegal driftnet fishing.

Background
Plaintiffs filed their initial suit in 1995 alleging that the Secretary of Commerce had failed to identify Italy as a nation in violation of the Act. The plaintiffs alleged that Italian ships employed large-scale driftnet fishing on the high seas in violation of the Act and the trial court agreed. Under the trial court’s holding, the Secretary of Commerce was instructed to identify Italy as a possible violator and notify the Italian President accordingly. Pursuant to necessary procedures under the Act, the U.S. entered into negotiations with the Italian government and received proposals from the Italian government of its intention to discontinue the use of driftnets. These assurances were sufficient to avoid the imposition of sanctions and the Secretary of Commerce“certified” to the President that Italy was no longer involved in the process of illegal driftnet fishing.

The current case arose in 1998 when the plaintiffs filed a second suit against the President alleging that Italy was still engaging in the process of illegal driftnet fishing, despite the previous certification by the Secretary of Commerce. The plaintiffs asked the Court to require the Secretary to suspend the certificate of termination because of the alleged, on-going violations. The trial court denied the request holding that the President’s determination of whether the negotiations with Italy had been “satisfactorily concluded” was within the discretion of the President. In addition, the trial court held that the Secretary’s certification of termination was not arbitrary and capricious.3 The U.S., in turn, raised the defense of sovereign immunity, arguing that the trial court did not have jurisdiction in this case.

Decision of the Court of Appeals
The United States Court of Appeals for the Federal Circuit first held that the Act involved an implicit waiver of sovereign immunity and therefore, the trial court did indeed have jurisdiction over the case. Generally speaking, the United States government is immune to suits under the principle of sovereign immunity, which allows the government to continue to function in situations where unpopular, but necessary decisions must be made. Raising the defense of sovereign immunity, the government claimed that it could not be held liable under the Act and that the trial court lacked jurisdiction to determine the government’s liability. The court did not agree, finding that the Act itself grants jurisdiction to the court of International Trade to hear specific cases under the Act and to determine the liability of the government officials for actions taken pursuant to the Act. The court also found that the President enjoys broad discretion in the determination of whether or not an agreement reached under the Act may be deemed a “satisfactory conclusion” of the negotiations with foreign nations.

The Court then turned to the Secretary ‘s certification that Italy had ceased its illegal fishing. When focusing on the Secretary’s action, the Court must determine whether the action was done in an arbitrary and capricious manner. This essentially requires that the court look into whether or not the Secretary made a decision based on reasonable inquiry into the situation at hand or merely acted at random. When certifying that a nation has terminated its illegal activities, the Secretary should look at the conduct and intentions of that nation’s government. The court held that the evidence presented showed that even though the proposals presented by Italy were not fully implemented,they were adequate to give assurance that the nation intended to comply with the agreement. Hence, the court held that the Secretary’s actions were not arbitrary and capricious.

Conclusion
In charges under the High Seas Fisheries Enforcement Act, the government may not raise the defense of sovereign immunity because the Act grants specific jurisdiction to the courts and carries an implied waiver of sovereign immunity. The court also held that the President has broad discretion in the decision of whether negotiations, with a foreign nation, have been “satisfactorily concluded.” Finally, the court decided that a certification by the Secretary of Commerce may be reviewed by a court under the arbitrary and capricious standard.

ENDNOTES:
1. High Seas Fisheries Enforcement Act, 16 U.S.C. § 1826 (Supp. IV 1998).
2. A writ of mandamus is a directive from a court of superior jurisdiction commanding a lower court or its officers to do something particular within its authority. Black’s Law Dictionary, 961 (6th ed.1990).
3. The trial court’s complete holding included a ruling that the Secretary of Commerce acted arbitrarily and capriciously in its certification of Italy.