author: CHARLES R. RICHEY, District Judge,

text:
    AMERICAN CETACEAN SOCIETY, et al., Plaintiffs, v. Malcolm BALDRIDGE, et al., Defendants, and The Japanese Whaling Association & The Japanese Fishing Association, Defendant-Intervenors.
    Civ. A. No. 84-3414.
    United States District Court, District of Columbia.
    Decided March 5, 1985.

      William D. Rogers, James A. Beat and John F. Libby of Arnold & Porter, Washington, D.C., for plaintiffs.
    F. Henry Habicht, II, Asst. Atty. Gen., Donald A. Carr and Dianne H. Kelly, U.S. Dept, of Justice, Peter H. Flournoy, of counsel, U.S. Dept, of State, and Robert McManus, Gen. Counsel, National Oceanic and Atmospheric Admin., Dept, of Commerce, Washington, D.C., for defendants.
    Scott C. Whitney and Steven R. Perles, Washington, D.C., for defendant-intervenors.
   CHARLES R. RICHEY, District Judge,

This action is before the Court on Cross-Motions for Summary Judgment, as well as a Motion to Dismiss for failure to state a claim upon which relief can be granted. The numerous plaintiffs in this case are all wildlife conservation groups which share a common dedication to preserving and protecting endangered species. The defendants are Secretary of Commerce Malcolm Baldridge and Secretary of State George Schultz, both being sued in their official capacity. In addition, the Japanese Whaling Association and Japanese Fisheries Association (hereinafter “JWA/JFA”) have been allowed into this action as defendant/intervenors.

Plaintiffs contend that Secretary Baldridge violated a clear non-discretionary duty when he failed to certify to the President that Japanese nationals were engaged in sperm whaling in violation of the International Whaling Commission’s (hereinafter “IWC”) zero sperm whale quota for the 1984-85 season. Plaintiffs seek a declaratory judgment from this Court that such failure to certify was in violation of the Packwood-Magnuson Amendment to the Magnuson Fishery Conservation and Management Act of 1976. 16 U.S.C. §§ 1821(e)(2)(A)(i) and (B). Plaintiffs also request that the Court declare and adjudge that such whaling activities by any nation in excess of the IWC quota is necessarily an activity which “diminishes the effectiveness” of the International Convention for the Regulation of Whaling (hereinafter “the Convention”), the multi-lateral treaty which the IWC oversees.

Additionally, plaintiffs seek a permanent injunction from this Court enjoining both Secretaries Baldrige and Schultz, and their subordinates, from agreeing not to certify, and from failing to certify, any whaling activities by nationals of Japan that violate IWC whaling quotas, and from agreeing not to reduce, and from failing to reduce, Japanese fishing quotas in consequence of such certification.

The defendants argue that Secretary Baldridge’s actions which give rise to this suit were within the scope of his discretion to determine what activities diminished the effectiveness of the Convention, and that his decision not to certify was actually designed to insure its continued effectiveness. Therefore, the defendants argue, the Packwood-Magnuson automatic sanction was never triggered. The JWA/JFA argue that the Japanese were never technically in violation of the Convention, and, therefore, the Japanese cannot be certified. In addition, they raise other arguments dealing with what they perceive as irregularities under the Administrative Procedure Act 5 U.S.C. § 551, et seq. They have also filed a motion to dismiss the complaint under Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. In this motion, the intervenors argue that plaintiffs fail to meet the appropriate standard for a permanent injunction in the nature of mandamus and that therefore the complaint cannot stand.

For the reasons set forth below, the Court denies the Motion to Dismiss, and grants the Plaintiffs’ Motion for Summary Judgment.

FACTUAL AND STATUTORY BACKGROUND

For the past thirty five years, the international whaling industry has brought about the systematic devastation of the major whaling populations on this planet. Although a central focus of many cultures over the past centuries, whaling has gone beyond cultural identity and into the realm of international business. The whale was originally hunted for its oil, its ivory teeth and its meat. It was hunted in small numbers, as the technology of the early whalers limited their ability to catch more than a few whales each season. This has changed drastically, however, since the end of World War II. Improvements in technology, such as larger and stronger whaling ships and explosive harpoons, made whaling as big business both practical and profitable. New uses for whale products began to be discovered. The whale oil, once used for heat and light, is now used as a high-grade industrial lubricant. The meat, only rarely used for human consumption, is a major ingrediant in pet food and agricultural feed. The whalers, unrestrained by any regulations regarding their activities, took as many whales as they could find. By the early 1960’s, blue and humpback whales had been virtually exterminated, driven to “commercial extinction,” where there were too few remaining to make hunting them worthwhile. (Garrett Affidavit at 1). By the early 1970’s, the major populations of large baleen whales in the Antarctic and North Pacific oceans had been destroyed. Fin and sei whale populations had been likewise reduced to small percentages of their original levels. Id. The whaling industry then refocused its efforts on the remaining available species: the sperm whale, the Bryde’s whale, and the smaller minke whale.

The International Convention for the Regulation of Whaling, which created the IWC, arose as a result of the recognized need for some kind of coordinated regulation of international whaling. The Convention was signed in 1946 and entered into force on November 10,1948. 62 Stat. 1716, T. I.A.S. No. 1849. Under the terms of the Convention, global annual whaling quotas and regulations restricting whaling methods are to be established at annual and special meetings of the IWC. Convention, Art. V ¶ 1. Originally, the IWC was used as a vehicle for the control of whale oil prices. However, since 1972 it has steadily evolved as an agency promoting conservation rather than commercialization of whales.

a) The Pelly Amendment

The United States government was a signatory of the Convention and is a member nation in the IWC. It has consistently taken the role of enforcing the quotas as set by the IWC with the threat of economic sanctions against countries which fail to adhere to the IWC limits. In 1971, Congress enacted the Pelly Amendment to the Fishermen’s Protective Act of 1967, 22 U. S.C. § 1978, for the express purpose of creating a sanction against countries that refused to conduct their fishing operations consistent with international fishery conservation programs. The Pelly Amendment states that when the Secretary of Commerce determines that nationals of a foreign country are conducting fishing operations which “diminish the effectiveness” of any international fisheries conservation program to which the United States is a party, he shall so certify to the President. 22 U.S.C. § 1978(a)(1). The President may then direct the Secretary of the Treasury to prohibit the importation of fish products of the offending nation. 22 U.S.C. § 1978(a)(4). Within sixty days of certification, the President is required to notify Congress of any action taken as a result of such certification, or of his reasons for taking no action or taking only limited action against the offending nation. 22 U.S.C. § 1978(b).

On November 12, 1974, the Secretary of Commerce certified both Japan and the Soviet Union under the Pelly Amendment. The IWC had set a quota of 5,000 Antarctic minke whales for the 1973-74 season. Both nations had objected to the quota under the procedures set forth in the Convention. The Secretary determined, however, that when the Soviet Union took 4,000 minke whales and Japan took 3,713, that both countries had acted to “diminish the effectiveness” of the Convention. On January 19, 1975, former President Gerald R. Ford made it clear that any taking of whales in excess of IWC quotas would trigger the Pelly Amendment certification, saying that “exceeding the quotas will diminish the effectiveness of the program.” White House Press Release, January 17, 1975. (Plaintiff’s Brief at 8). The imposition of sanctions was forstalled, however, when both Japan and the Soviet Union then agreed to accept the 1974-75 quotas. Id.

The Pelly Amendment has been brought into play several times since. On December 14, 1978, the Secretary of Commerce certified Chile, Peru and the Republic of Korea for exceeding IWC quotas. At that time none of these nations were members of the IWC or signatories of the Convention. Within sixty days after certification, all three had either joined the IWC or committed to do so by the next scheduled annual meeting. Again, in 1979, the threatened certification of Spain led that country to agree to adhere to the IWC fin whale quota for that year, despite having filed a formal objection. Preparations for the 34th International Whaling Commission Meeting: Hearings before the Subcomm. Hu man Rights and International Organizations of the House Comm, on Foreign Affairs, 97th Cong., 2d Sess. 11 (1982) (Congressional Research Service Report).

b) The Packwood-Magnuson Amendment

In 1979, Congress determined that the Pelly Amendment, however effective, was inadequate to the task of persuading commercial whaling nations to adhere to IWC decisions. Accordingly, Congress enacted the Packwood-Magnuson Amendment to the Magnuson Fishery Conservation and Management Act of 1976 (hereinafter “Packwood-Magnuson”). 16 U.S.C. § 1821. That Act has, since 1976, regulated commercial fishing within the United States 200-mile fishery conservation zone. It provides for the Secretary of State to grant foreign nations annual allocations of allowable levels of fishing within the 200-mile zone. Id.

Packwood-Magnuson amended that Act to provide that the Secretary of Commerce would have the responsibility to ascertain and certify whether “nationals of a foreign country, directly or indirectly, are conducting fishing operations or engaged in trade or taking which diminishes the effectiveness of the International Convention for the Regulation of Whaling.” 16 U.S.C. § 1821(e)(2)(A)(i). Upon such certification, the Amendment mandates that the fishing allocation of the offending nation “shall be reduced by the Secretary of State, in consultation with the Secretary [of Commerce], by not less than 50 percent.” 16 U.S.C. § 1821(e)(2)(B). If the certification by the Secretary of Commerce is terminated within one year, the suspended allocation may be reinstated. 16 U.S.C. § 1821(e)(2)(C)(iii). If the certification is not terminated within one year, the suspended allocation is permanently rescinded and the Secretary of State “may not make any allocation to that country ... until the certification is terminated.” 16 U.S.C. § 1821(e)(2)(D).

The threat of automatic sanctions under Packwood-Magnuson has proved to be an effective incentive in the enforcement of the IWC regulations and quotas. In 1980, both the Republic of Korea and Taiwan agreed to adhere to IWC regulations not directly involving whaling quotas, when faced with the possibility of Packwood-Magnuson sanctions. Preparations for the 34th International Whaling Commission Meeting, supra, at 11. The former United States representative to the IWC views the automatic sanctions under Pack-wood-Magnuson to be the foundation upon which the present system of international whaling controls has been built. (Affidavit of Thomas Garrett ¶ 9).

c) The IWC whaling quotas

In 1981 the IWC voted to amend the quota tables to provide that no sperm whales could be taken in any future year unless a specific quota was established by the IWC for that year. The vote on that issue was 25 to 1, with Japan casting the lone opposition vote. Review of the 33rd International Whaling Committee Meeting: Hearing before the Subcomm. on Human Rights and International Organizations of the House Comm, on Foreign Affairs, 97th Cong., 1st Sess. 11 (1981) (Staff Report).

At the next annual meeting, in July, 1982, the IWC voted to impose a five year moratorium on all commercial whaling in order to allow depleted whale stocks to regenerate, and for scientists to have an opportunity to gather more extensive data on the populations and distributions of whale stocks to determine whether commercial whaling could be safely resumed at some future date. Review of the 34th International Whaling Commission Meeting, 97th Cong., 2d Sess. 17-19 (1982) (Staff Report). Of the member nations of the IWC, only Japan, the Soviet Union and Norway filed objections to the moratorium.

In July 1982, Japan requested, and was granted, two additional years of sperm whaling through the 1983-84 season. This additional grant was part of a compromise effort to insure passage of the general whaling moratorium to begin in 1986. No sperm whale quota was established by the IWC for the 1984-85 season. Thus, under the terms of the 1981 amendment to the quota tables, any sperm whaling during the 1984- 85 season would be in violation of the zero quota which resulted.

d) The November 13, 1981/. exchange of letters

The Japanese government, apparently well aware of the threat of Packwood-Magnuson sanctions, entered into negotiations with the United States Commissioner to the IWC. On November 13, 1984, the Department of Commerce released copies of an exchange of correspondence between Yasushi Murazumi, Japanese Charge d’Affaires in Washington, D.C., and Secretary Baldridge. Attached to the letter from Murazumi was a document entitled “Summary of Discussions on Commercial Sperm Whaling in the Western Division Stock of the North Pacific, November 1-12, 1984, Washington, D.C.” This document described the negotiations between Mr. John V. Byrne, the U.S. Commissioner to the IWC, and Mr. Hiroya Sano, Director General, Fisheries Agency, Ministry of Agriculture, Forestry and Fisheries of Japan. Later the same day, the Secretary responded by letter to Mr. Murazumi in which the Secretary pledged not to certify additional sperm whaling by Japan during the 1984-85 and 1985- 86 seasons, provided that the Japanese took the steps outlined in its letter. Specifically, the Secretary concluded that if Japan followed the promises made in its letter to eventually come into voluntary compliance with the IWC sperm whale and moratorium decisions, Japan would not be acting in a manner which would diminish the effectiveness of the Convention, thus avoiding the triggering of Packwood-Magnuson sanctions.

The arrangement worked out between the Secretary and Japan would allow the Japanese whaling fleet to take up to 400 sperm whales during each of the 1984 and 1985 seasons, on the condition that they promise to cease all commercial sperm whaling at the end of the 1987 season. Japan in return agreed to withdraw its objection to the IWC quota table amendment which created the zero quota by no later than December 13, 1984. On December 11, 1984, the Japanese complied with this pledge and withdrew their objection to the amendment. The second part of the agreement was likewise conditioned on a promise by the Japanese. If the Japanese agreed to cease all commercial whaling by April 1, 1988, then they may take up to 200 sperm whales in each of the 1986 and 1987 seasons, and take other species subject to limits acceptable to the United States, to be determined at a later time. The Japanese must withdraw their objection to the general moratorium by April 1, 1985, in order to avoid Paekwood-Magnuson certification.

Even as the negotiations which led to the exchange of letters was taking place, the Japanese whaling fleet was out at sea to catch whales. On November 11, 1984, several members of the plaintiff organizations observed and photographed the return and butchering of two sperm whales at Wadaura, Japan. (Affidavit of J. Campbell Snow-den). By letter dated November 19, 1985, counsel for the plaintiffs brought to the attention of the Secretary the fact of continued sperm whaling by the Japanese in violation of the IWC quotas, and requested immediate certification. On November 30, 1984, the Secretary, through the General Counsel of the National Oceanic and Atmospheric Administration, responded that he would abide by the terms of the November 13 exchange of letters and would not certify Japan for the ongoing sperm whaling activities.

ANALYSIS

I. CERTIFICATION BY THE SECRETARY OF COMMERCE OF WHALING IN EXCESS OF THE IWC QUOTAS IS MANDATORY AND NONDISCRETIONARY.

When looking at the meaning of a statute, or a phrase therein, the Court must first look to the plain words of the statute. United States v. Apfelbaum, 445 U.S. 115, 121, 100 S.Ct. 948, 952, 63 L.Ed.2d 250 (1980); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). The Pelly Amendment states unequivocably that “when the Secretary of Commerce finds” that a nation is acting so as to “diminish the effectiveness” of an international fisheries conservation agreement to which the United States is a party, he “shall certify such fact to the President.” 22 U.S.C. § 1978(a)(2) (emphasis supplied). That this is a mandatory obligation of the Secretary’s is borne out by the legislative history of the Pelly Amendment, which is replete with phrases such as “required to certify,” “must certify,” and “directs the Secretary to certify.” See, 117 Cong.Ree. 34751 and 47053 (1971); H.R. Rep. No. 468, 92d Cong., 1st Sess. 6 (1971), U.S.Code Cong. & Admin.News 1971, p. 2409. The Packwood-Magnuson Amendment was enacted with much the same language. Once the Secretary has determined that a nation is acting so as to diminish the effectiveness of the International Whaling Convention, he must certify that fact to the President. 16 U.S.C. § 1821(e)(2)(A)(i). Neither statute provides a definition of this key phrase. Only when the words of the statute are ambiguous or unclear is it proper for a court to resort to legislative history to derive the intent of the lawmakers. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Petry v. Block, 697 F.2d 1169 (D.C.Cir.1983). Because the phrase which triggers certification is not clearly defined in either statute, the Court will look to the legislative history of both Pelly and Packwood-Magnuson to determine its meaning.

The issue in this case is in actuality very simple. It is whether the Secretary has any discretion under the statute to determine what actions will trigger the automatic sanction. The defendants agree with the plaintiffs that the Secretary has a mandatory duty to certify once the circumstances which the phrase “diminishes the effectiveness of the Convention” seeks to define are found to be present. Rather, they argue that the determination of those circumstances has been left in the hands of the Secretary as a threshold discretionary decision to be made before certification becomes mandatory.

Plaintiffs, in their reply memorandum, concede that the Secretary may in fact have some discretion in this area, but that he may not utilize that discretion in the face of violations of IWC quotas, which the plaintiff contends to be the specific protection for which Packwood-Magnuson was created. They refer to numerous quotes of legislative history and a history of consistent agency interpretation as the basis for this argument.

a) Fishing In Violation Of Quotas Established Under An International Convention Was The Specific Wrong To Which Congress Intended Both Pelly And Packwood-Magnuson To Apply.

It appears clear from the legislative history that Congress in 1971 specifically had in mind the particular situation present in this case, of a member nation to an international fisheries agreement filing an objection which, although permitted by the terms of the agreement, rendered the agreement itself futile and ineffective. In enacting the Pelly Amendment, Congress cited, as a prime example of a situation which would call for certification, the flagrant overfishing of Atlantic salmon by nations that had filed timely objections to the international ban on such fishing. The objection procedures in use there are similar to that included in the Whaling Convention. Congressman Pelly explained that his Amendment was needed because “under the terms of the governing convention, individual nations are permitted to exempt themselves from the decisions of the commission.” 117 Cong.Ree. 34751-52 (1971). These violations of the salmon quota were cited as the primary basis of the need for the United States to use its economic influence so as to reverse the trend. 117 Cong. Rec. 34754 (1971) (statement of Rep. Clausen). It is also apparent that the Pelly amendment was to apply to violations of the International Whaling Convention:

“The saga of the Atlantic salmon unfortunately is being repeated around the world with respect to many other creatures that inhabit the seas, most notably the whale. Commercial pressure has virtually wiped out the largest and most awesome species of whale. The International Whaling Convention, far from being a conservation measure, has proved to be a cloak for over-exploitation on a grand scale.” 117 Cong.Rec. 34752 (1971) (statement of Rep. Pelly)

A review of the legislative history of the Pelly Amendment leaves no doubt that the primary purpose behind creating a certification and economic sanction mechanism was to penalize nations that evade international fishery conservation measures by invoking technical treaty rights to exempt themselves from these measures. It was an attempt by Congress to enforce compliance with these international efforts which lacked any real enforcement power of their own. Defendants fail to cite any authority which contradicts this proposition.

This interpretation was also the basis for the Executive Branch position on the Pelly Amendment. The Department of State representative testified on July 8, 1971, that the State Department viewed the bill as providing that

... “if the majority of nations did accept a regulation or a ban on salmon fishing and that regulation applied to U.S. fishermen, and one of the nations of the convention or one of the nations not a member didn’t agree with it, as far as trade with the United States was concerned, that such trade restrictions would be applied to fishery products of that nation.” 1971 House Hearings 394.

Likewise, the Commerce Department, by letter to the House Committee on Merchant Marine and Fisheries, stated that the bill would “authorize the President to impose sanctions against countries which do not abide by that ban whether or not they are members of [the convention] and whether or not, if members of [the convention], they have accepted the ban.” H.R.Rep. No. 468, 92d Cong. 1st Sess. 10 (1971), U.S.Code Cong. & Admin.News 1971, p. 2409. It is clear that the problem Congress sought to address with the Pelly amendment was the ability of other nations to ignore international conservation programs by invoking exemption privileges provided for in the treaties. The Executive branch fully agreed.

Thus does the phrase “diminish the effectiveness of” take on meaning and purpose. While many actions might result in a determination by the Secretary that certification is required, Congress specifically and unequivocably intended that such certification be made in the face of a nation attempting to exempt itself from its international fishery conservation obligations.

It appears equally clear that Packwood-Magnuson used the phrase in exactly the same manner as it was intended to be used in Pelly. Packwood-Magnuson was enacted to put teeth into the certification process by eliminating the discretion given the Executive whether to apply sanctions or not. The legislative history shows no evidence that Congress intended to alter the meaning of this key phrase, or that the concern about foreign nations exempting, themselves out of international fisheries treaties had in any way abated. Indeed, the discussions before the House Subcommittee on Fisheries and Wildlife Conservation and the Environment in 1979 clearly reflect that this concern was of paramount importance. Mr. Richard A. Frank, then Administrator of the National Oceanic and Atmospheric Administration testified as follows:

“We have used the Pelly amendment most recently in connection with Peru, Chile, and South Korea. They were the most flagerant violators because they were taking whales without regard to IWC quotas ...
“... IWC resolutions are not binding. If a country were violating something in the schedule, for example, taking more whales than the schedule provides, and that were a significant violation, I believe it is clear that the Pelly amendment would apply.” Whaling Policy and International Whaling Commission Oversight, 96th Cong., 1st Sess. 311-12 (1979).

When asked later if he considered Japan to be at that time in violation of the convention, Mr. Frank replied, “no sir, we have not ... They are not violating an IWC quota or an IWC prohibition.” It was with this interpretation of the certification mechanism contained in Pelly that Congress enacted Packwood-Magnuson, which was endowed with the same language and the same certification trigger.

b) Agency Interpretation And Application Of Pelly And Packwood-Magnuson Has Consistently Resulted In Certification For Violations Of International Quotas.

The Executive Branch, prior to enactment of the Pelly Amendment in 1971, and until as recently as July 24, 1984, consistently has taken the position that intentional fishing in excess of duly established international quotas necessarily “diminishes the effectiveness” of the applicable fisheries conservation program. The Court has already quoted several examples of the Executive’s position during the hearings on the Pelly amendment, and will not repeat them here except by reference. Similarly, it has already been noted that this position had not changed by the 1979 hearings on Pack-wood-Magnuson. Indeed, the Court is struck by the consistency and clarity of the position taken. This position has been echoed in the actions of the Executive as well as in its words.

One such example is found in Adams v. Vance, 570 F.2d 950 (D.C.Cir.1978). This case involved the taking of bowhead whales by Alaskan natives. Although bow-head whales are one of the most endangered species, small quotas had been allocated each year for the benefit of Alaskan natives because of the important role whaling has traditionally played in the Eskimo culture. In 1977, the IWC established no bowhead subsistance quota for 1978 based on IWC scientific findings. Although the Alaskan Eskimos vehemently opposed the decision, the United States did not file an objection which, under the terms of the Convention, would have resulted in an exemption to the zero quota. The Eskimos then filed suit to compel the Secretary of State to file an objection.

The objection sought by the Alaskans would have resulted in only a small number of bowhead whales being taken. However, the United States argued that the filing of an objection, even if later withdrawn, would have a devistating effect on the future effectiveness of the IWC and the Convention. Id. at 952. By affidavit, the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs testified that “A United States objection at this time would seriously weaken the effectiveness of the IWC as an instrument of conservation.” (Mink Affidavit at 7, 8). Further, the Administrator of the National Oceanic and Atmospheric Administration from 1970 to July 1977 testified:

“In my judgment, the ability of the United States to maintain its posture of international leadership in the protection of whales, and to justify the imposition of sanctions upon other nations which object to IWC quotas, depends upon its own scupulous observance of such quotas.” (White Affidavit at 2, 3).

In light of this strong sense of leadership in the international whaling community reflected in the Executive’s words and acts, it appears a complete reversal for the Secretary of Commerce to agree not to certify a foreign nation whose nationals are intentionally whaling in violation of established IWC quotas. The Court does not agree with the defendants’ application of the holding in Adams. Defendant would have the Court use Adams as a vehicle for denying the plaintiffs relief on foreign policy grounds. However, that case involved a suit to force the Executive to perform a discretionary act, namely to file an objection to the zero bowhead whale quota, after the Executive had deliberated and decided that such an objection was not in the best interest of either the United States or the Convention. Here, plaintiffs are seeking to compel the performance of a non-discretionary duty on the part of the Secretary of Commerce to certify any nation which is intentionally whaling in violation of the IWC quotas.

Further, if the Executive could interpret the taking of 15 or 20 bowhead whales as a threat to the entire IWC structure, the Court cannot see how the taking of 1200 sperm whales over a four-year period when no IWC quotas are in effect and unknown numbers of minke and Bryde’s whales “acceptable to the United States after consultation with the Government of Japan” over a two year period when no IWC quotas are in effect, could possibly be countenanced.

Finally, the December 13, 1984 exchange of letters is inconsistent with the Secretary’s own interpretation of the law stated in correspondence with Sen. Packwood less than six months before. Sen. Packwood had written concerning the Secretary’s interpretation as it would apply to the complete moratorium on commercial whaling to go into effect at the beginning of the 1986 whaling season. The Secretary responded as follows:

“You noted in your letter the widespread view that any continued commercial whaling after the IWC moratorium decision takes effect would be subject to certification. I agree, since any such whaling attributable to the policies of a foreign government would clearly diminish the effectiveness of the IWC ...
“Any government that chooses to ignore the commercial whaling moratorium implemented by the IWC and thereby diminishes the effectiveness of the IWC should be prepared to accept the consequences of this non-compliance.” Letter from Secretary of Commerce to Sen. Packwood (July 24, 1984).

It is inconceivable to this Court how the Secretary can reconcile his decision not to certify the Japanese sperm whaling with the clear purpose, intent and history of the law he is charged with enforcing, and with the equally consistent interpretation given that law by the agency and by the Secretary himself.

Therefore, there being no material facts in dispute, the plaintiffs’ motion for summary judgment is granted, and the defendants’ cross-motion is denied.

c) The Intervenor’s Motion For Summary Judgment Must Be Denied.

The defendant-intervenors JWA/JFA have filed a motion for summary judgment which takes the position that the Secretary may never certify a nation which has filed a timely objection as provided for by the Convention. They argue extensively that the zero sperm whale quota and the general commercial whaling moratorium are illegal under the terms of the Convention and under international law. Therefore, the theory goes, if the quotas are themselves illegal, then Japan cannot be sanctioned for ignoring them. The intervenors also argue that certification is itself an illegal agency action, in violation of the Administrative Procedure Act, 5 U.S.C. § 551, et seq., as the agency has never promulgated regulations defining the statutes, nor provided the Japanese with notice and hearing under 5 U.S.C. § 556. Both of these arguments fail on their face and must be rejected by the Court.

Intervenors’ entire discussion of the alleged improprieties which resulted in the passage of the zero sperm whale quota and the general commercial whaling moratorium, while certainly offering some fascinating insights into the inner workings of such treaties, is entirely irrelevant to the issue in this case. This Court is not being asked to interpret or pass judgment on an international treaty or any actions taken as a result thereof. Rather, the only true issue in this case is whether there exists a non-discretionary duty to certify and did the Secretary fail to so do. The relevant statutes make no mention of being applicable only to nations which are members of an international convention and which fail to timely object to the regulations of that convention. Rather, the plain words of both Pelly and Packwood-Magnuson operate to include any nation which “diminishes the effectiveness” of such a program. The statutes make no distinction between signatory or non-signatory, objector or non-objector. Indeed, in December of 1978, the Secretary certified Chile, Peru and South Korea under the Pelly Amendment at a time when none of these nations were members of the IWC.

Thus, it makes no difference that the Japanese filed a valid objection, or whether the moratoria where “illegal.” The statute only requires that the nation to be certified has acted so as to diminish the effectiveness of the Convention. The legislative history and consistent agency interpretation shows that any nation which exceeds the IWC quotas will be viewed as acting to diminish the effectiveness of the IWC and will be certified, regardless of the nations own view of the propriety of the quotas themselves.

Intervenors’ Administrative Procedure Act argument is equally as facetious. Intervenor has ignored a fundamental of administrative law, that notice and hearing are only required for the taking of rights or property. Here, what is being taken is a revocable license, the license given to a foreign country to come into United States waters and fish. This is a privilege which does not give rise to a property right of the Japanese. See, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 313, 94 L.Ed. 317 (1950). Further, it is clear that Section 556 of the APA, 5 U.S.C. § 556, only sets forth the procedural rights that are available when a trial-type hearing is required. Section 554 of the APA states that such a hearing is required “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing ...” 5 U.S.C. § 554(a). Accord, Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed.2d 616 (1950); Sea-Land Service, Inc. v. Federal Maritime Commission, 653 F.2d 544, 551 n. 18 (D.C.Cir.1981); Marathon Oil Company v. Environmental Protection Agency, 564 F.2d 1253, 1263-64 (9th Cir.1977). Neither Pelly nor Pack-wood-Magnuson require that a determination be made after a trial-type hearing on the record. Thus there has been no violation of either § 556 or § 554 of the APA.

Even assuming arguendo that these statutes did require a hearing with respect to certification, plaintiffs would still be entitled to the relief they seek. The sole factual issue to be determined prior to certification is whether the Japanese are taking sperm whales in excess of the established IWC zero quota. Because that fact is established in this Court proceeding, and is stipulated to by all parties, there is no factual issue to be resolved by an evidentiary hearing. Cerro Wire & Cable Co. v. Federal Energy Regulatory Commission, 677 F.2d 124, 128-9 (D.C.Cir.1982).

Nor is the Secretary required by law to adopt substantive interpretive regulations prior to exercising his duty to certify. The Supreme Court specifically rejected that argument in SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), holding that to require proceedings initially by rulemaking “would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise.” Id. at 202, 67 S.Ct. at 1580. This holding has continued to be followed to this day. See, National Labor Relations Board v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974); Towns of Concord, Norwood and Wellesley, Massachusetts v. Federal Energy Regulatory Commission, 729 F.2d 824, 830 (D.C.Cir.1984); Arkansas Power and Light Co. v. Interstate Commerce Commission, 725 F.2d 716, 723 (D.C.Cir.1984). The case on which Intervenors rely, Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974), merely stands for the proposition that if an agency promulgates interpretive rules, it must do so in conformance with APA procedures.

Further, intervenor’s argument that an earlier treaty must take precedence over a later act of Congress does not apply in this case. The Supreme Court has held on numerous occasions for more than a century that such a treaty is subject to “such acts as Congress may pass for its enforcement, modification, or repeal.” Head Money Cases, 112 U.S. 580, 599, 5 S.Ct. 247, 254, 28 L.Ed. 798 (1884). See also, Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed.2d 729 (1951); Pigeon River Improvement Slide & Boom Co. v. Charles W. Cox. Ltd., 291 U.S. 138, 160, 54 S.Ct. 361, 367, 78 L.Ed.2d 695 (1934); United States v. Payne, 264 U.S. 446, 448, 44 S.Ct. 352, 353, 68 L.Ed. 782 (1924). Even without this authority, the Court does not view the Pelly and Packwood-Magnuson Amendments as conflicting with the Convention. There is nothing in the Convention which states that upon ratification of the treaty the United States gave up its right to persuade other nations to comply with the IWC whaling quotas established pursuant to that very convention. The Convention provides that Japan may exempt itself from IWC quotas by filing a timely objection. No provision of the Convention, however, restricts the right of any other party to impose unilateral sanctions to enforce these same quotas, which is what the statutes at issue provide for, and what the plaintiffs seek here.

Finally, Intervenor’s argument that the doctrine of primary jurisdiction should apply is incorrect. This case is a simple issue of statutory interpretation. Questions of law are particularly within the competence of the judiciary to resolve, and are not subject to initial agency consideration under the primary jurisdiction doctrine. Nader v. Alleghany Airlines, 426 U.S. 290, 305-6, 96 S.Ct. 1978, 1987-88, 48 L.Ed.2d 643 (1976); Great Northern Ry. Co. v. Merchant’s Elevator Co., 259 U.S. 285, 290-91, 42 S.Ct. 477, 478-79, 66 L.Ed. 943 (1922).

II. THE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED IS DENIED AS THE INCORRECT LEGAL STANDARD HAS BEEN APPLIED AND AS AN INJUNCTION IN THE NATURE OF MANDAMUS IS PROPER WHERE, AS HERE, A NONDIS-CRETIONARY ACT IS INVOLVED.

Intervenors have filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). As basis for this motion, the cite Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C.Cir.1958). Further, they argue that the Secretary does have discretion to determine what actions “diminish the effectiveness” of the Convention, therefore making the remedy of mandamus unavailable. The Court finds neither argument to be convincing, and, therefore, denies the motion.

Initially, as has been discussed above, when a foreign nation intentionally takes whales in excess of an established IWC quota, that action necessarily diminishes the effectiveness of the Convention and automatically triggers certification. That has been the consistent legislative and agency interpretation for almost fifteen years.- Therefore, this is a nondiscretionary ministerial duty for which relief in the nature of mandamus is appropriate. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). See also, Mississippi v. Johnson, 71 U.S. (4 Wall) 475, 498, 18 L.Ed. 437 (1866); 13th Regional Corporation v. U.S. Dept. of Interior, 654 F.2d 758, 760 (D.C.Cir.1980).

This is certainly such a case as envisioned by the law cited above. Congress created in 1971 a mandatory duty on the part of the Secretary of Commerce to certify actions of foreign nationals that diminish the effectiveness of international fishery conservation programs. It added in 1979 a mandatory economic sanction required to be imposed by the Secretary of State in the case of the certification of actions that specifically diminish the International Convention for the Regulation of Whaling. The obligation to act is preemptory and clearly defined. The law not only authorizes the demanded action, but requires it. Nothing is left for discretion. Almost fifteen years of administrative interpretation and congressional understanding of, and reliance upon, the interpretation that intentional whaling in violation of IWC quotas triggers the certification process, have established a clear meaning of the phrase. There is quite simply nothing for the Secretary to decide. He must certify under the plain meaning of the statute.

Intervenors argue that plaintiffs have failed to meet the four-part test laid out in Virginia Petroleum Jobbers, supra. However, the Court is in agreement with the plaintiffs that that case has no application to a request for a permanent injunction. Here, plaintiffs’ motion for summary judgment seeks a final determination of the merits of the case and an award of permanent relief. Thus, Virginia Petroleum Jobbers is irrelevant for purposes of this case.

The correct standard to be applied in a case such as this is that enunciated in Council of and for the Blind of Delaware County Valley v. Regan, 709 F.2d 1521, 1533 (D.C.Cir.1983), which established a three-pronged test for mandamus relief. Such relief is available if “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.” Id. Plaintiffs have passed all three prongs in this case and are therefore entitled to the permanent injunction which they seek. Plaintiffs have a clear right to relief and defendants have a clear duty to act, as discussed above. Most importantly, there is no other remedy available which will have the same effect of accomplishing the plaintiffs’ purpose. Plaintiffs seek to protect and preserve the remaining whale stock left on this planet after years of systematic decimation. Pelly and Pack-wood-Magnuson were enacted to this same end, and plaintiffs now seek to compel the Secretary to invoke these statutes as is his duty. There is no other form of relief available which would serve the same purpose. No amount of damages or alternative action by the defendants would have the same effect. Therefore, the motion to dismiss is denied, and the permanent injunction will issue under 28 U.S.C. § 1361.

CONCLUSION

The Court holds here that the Secretary of Commerce had a clear and nondiscretionary duty to certify the Japanese whaling in excess of the established IWC quotas. By not doing so, the Secretary has ignored the plain intent of Congress, and the historic significance of United States sanctions in the sphere of international whale conservation. The Secretary of Commerce may not unilaterally, or even bilaterally with the Japanese, dismiss the mandate of the IWC so as to proceed with his own particular vision of whale preservation. Congress has not given him that authority, and has, in fact, explicitly created an automatic sanction to prevent this very situation. Congress, in enacting Pelly in 1971 and Paekwood-Magnuson in 1979, wanted to send out a clear message to the world that the United States was committed to being in the vanguard of the fight to preserve the whale. The Secretary may not now distort his clear Congressional mandate by permitting a foreign nation (here Japan) to violate the IWC quotas without that nation facing the immediate consequences as set forth by the above-mentioned statutes. .

In view of the foregoing, the Court, by Order of even date herewith, will grant the plaintiffs’ motion for summary judgment, deny the defendants’ motion for summary judgment and deny the defendant intervenors’ motions for summary judgment and to dismiss, and order the defendants Baldridge and Schultz to immediately certify to the President that Japan is in violation of the IWC sperm whaling quota and enjoin them permanently from agreeing not to reduce, or failing to reduce, Japanese fishing quotas in consequence of such certification, and thus save another vital national, if not international, goal of the preservation of an almost extinct species of vital importance to humankind.


source: Caselaw Access Project

author: CHARLES R. RICHEY, District Judge.

license: Public Domain

text:
    AMERICAN CETACEAN SOCIETY, et al., Plaintiffs, v. Malcolm BALDRIGE, et al., Defendants, and The Japanese Fishing Association & The Japanese Whaling Association, Defendants-Intervenors.
    Civ. A. No. 84-3414.
    United States District Court, District of Columbia.
    March 13, 1985.

      William D. Rogers, James A. Beat and John F. Libby of Arnold & Porter, Washington, D.C., for plaintiffs.
    F. Henry Habicht II, Asst. Atty. Gen., Donald A. Carr and Dianne H. Kelly, U.S. Dept, of Justice, Washington, D.C., Peter H. Flournoy, of counsel, Office of the Legal Advisor, U.S. Dept, of State, Washington, D.C., and Robert McManus, General Counsel, Nat. Oceanic and Atmospheric Admin., Dept, of Commerce, Washington, D.C., for defendants.
    Scott C. Whitney and Steven R. Perles, Washington, D.C., for defendants-intervenors.
   MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

INTRODUCTION

Before the Court are the defendants’ and defendant-intervenors’ applications for a stay pending appeal of the Court’s March 5, 1985 Opinion and Order, 604 F.Supp. 1398, in this case. That decision was based on the Court’s determination of the clear intent and design of Congress in passing the Packwood-Magnuson Amendment to the Magnuson Fishery Conservation and Management Act of 1976, 16 U.S.C. §§ 1821(e)(2)(A)(i) and (B), to create an automatic process whereby any foreign nation whaling in excess of established. International Whaling Commission (“IWC”) quotas would be certified as such to the President and would, as a sanction, have their fishing allocation in U.S. waters cut by at least 50 per cent. 16 U.S.C. § 1821(e)(2)(B). The Court found that the phrase “diminish the effectiveness of the Convention,” which acts as the certification trigger in both Packwood-Magnuson and the earlier Pelly Amendment to the Fishermen’s Protective Act of 1967, 22 U.S.C. ■§ 1978, was sufficiently ambiguous as to require resort to the legislative history of both Amendments to determine the meaning of that phrase.

A careful and thorough reading of that legislative history clearly showed that Congress, when enacting both Amendments, had specifically in mind the situation at issue in the present case, that of a foreign nation attempting to circumvent an international fisheries treaty by filing an objection to the established quota and fishing in excess of that quota. Packwood-Magnuson was enacted solely for the purpose of creating a mandatory and automatic sanction in the event a foreign nation should act to “diminish the effectiveness” of the IWC. The legislative history, as well as consistent administrative interpretation and action, establishes that any nation whaling in violation of an established IWC quota is necessarily “diminishing the effectiveness” of the International Convention for the Regulation of Whaling. The defendants were unable to cite any legislative history to the contrary. Indeed, as noted above, prior agency interpretation and action has been thoroughly consistent with the Court’s analysis. Further, the Court determined that the intervenors’ arguments about the legality of the quotas themselves under international law were irrelevant to the issue at bar, as the Amendments apply to any nation violating the IWC quotas, regardless of whether that nation is an IWC signatory or if it has filed a valid objection. Finally, the Court found that there had been no violation of the Administrative Procedure Act by the creation of the certification and sanction mechanism. There was no notice and hearing requirement under 5 U.S.C. § 556, as that section only sets forth the procedural rights that are available when a trial-type hearing is required by statute. Neither Pelly nor Packwood-Magnuson require such a hearing. Nor was the agency required to promulgate interpretive rules pri- or to exercising its duty to certify. SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947).

ANALYSIS

I. THE DEFENDANTS HAVE FAILED TO MEET THE FOUR-PART TEST FOR GRANTING A STAY PENDING APPEAL, AND, THEREFORE, THE COURT WILL DENY BOTH APPLICATIONS.

The applicants for a stay of the Court’s March 5, 1985 Opinion and Order argue that the defendants and defendant-intervenors have passed the four-part test set forth in Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921 (D.C.Cir.1958). That test requires the Court to weigh four factors in reaching its decision: (1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? (2) Has the petitioner shown that without such relief, it will be irreparably injured? (3) Would the issuance of a stay substantially harm other parties interested in the proceedings? (4) Where lies the public interest? Id. at 925.

a) Petitioners Have Not Shown A Strong Likelihood Of Prevailing On The Merits.

The first, and most important, hurdle which the petitioners must overcome is the requirement that they present a strong likelihood of prevailing on the merits of their appeal. “Without such a substantial indication of probable success, there would be no justification for the Court’s intrusion into the ordinary processes of administration and judicial review.” Virginia Petroleum Jobbers, supra at 925. Even should the petitioner show irreparable harm would result without the imposition of stay, if the requirement of a strong likelihood of success is not met, the petition will be denied. Blankenship v. Boyle, 447 F.2d 1280 (D.C.Cir.1971). This does not mean that the petitioner’s chances of success on appeal must appear as a “mathematical probability,” but that the trial court, in the exercise of its discretion, must weigh the probability of success on appeal in a “balance of equities” with the other three factors. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C.Cir.1977). The motion to stay may be granted, therefore, when a “serious legal question is presented, when little if any harm will befall other interested persons or the public and when denial of the order would inflict irreparable injury on the movant.” Id.

The Court finds that that petitioners have failed to meet this first test. As noted above, and discussed fully in the Court’s Opinion, the undisputed facts and legislative history are overwhelmingly against their position in this case. Defendants were unable to cite any legislative history which contradicted the interpretation laid out by this Court’s Opinion. Further, the petitioners position flies in the face of years of consistent agency interpretation that whaling in violation of an established IWC quota necessarily diminishes the effectiveness of the IWC. Even when weighed with the other three factors, petitioners have failed to present a serious legal question which would suggest to the Court a need to retain the status quo. For these, and all the other reasons set forth both above and in the Court’s Opinion, this crucial requirement for interim relief has not been met.

b) Petitioners Have Failed To Show Irreparable Harm.

The second factor to be considered is whether the petitioners will suffer irreparable harm should the stay be denied. As noted above, however, even with a showing of irreparable injury, it is within the Court’s discretion to deny the application should petitioners fail to make a strong showing of likelihood of success on appeal. Blankenship v. Boyle, supra. Here, petitioners have failed to show how they would be irreparably harmed by the denial of the stay. The federal petitioners argue that the denial of a stay would interfere with United States foreign policy by causing an abrogation of the November 13, 1984 exchange of letters between the Secretary of Commerce and the Japanese which gave rise to the present suit. They argue that efforts to resolve whaling issues with Japan and other nations in a non-confrontational manner, by using Packwood-Magnuson as a lever to extract commitments, will be irrevocably harmed. However, Congress did not intend Packwood-Magnuson to be used only as a threat, not to be put into practice unless it is the last resort with recalcitrant countries. Rather, it is clear that the Amendment was meant to be an automatic sanction, necessarily triggered by a violation of the IWC quota. Thus, the federal defendants may not lawfully use it as a bargaining chip in a situation such as is presented in this case. Further, to say that the credibility of the United States in the realm of foreign policy is the primary consideration to be protected is to actually argue against the stay itself. As the Japanese are well aware, this nation is a republic wherein the Executive Branch is not free to ignore the will of Congress or the requirements of the Constitution, and where the legality of Administration action is subject to judicial review. It would seem clear that there could be nothing more important to this nation’s credibility and respect than its reputation as a government true to its own principles, and whose officials are not themselves above the law.

Further, the intervenors argue that without a stay Japanese fishing and whaling interests will suffer. Although it is true that Japanese fishing interests will surely be injured, this factor alone does not require the Court to grant the stay. The Packwood-Magnuson sanction was designed to cause this very harm, so as to act as an incentive for foreign nations to respect the IWC quotas. Should the Japanese cease whaling and withdraw their objection to the general whaling moratorium, the Secretary of Commerce may withdraw certification and the sanctions will cease. 16 U.S.C. § 1821(e)(2)(B). Thus, even this harm is not irreparable. The Japanese whaling interests likewise will not be irreparably harmed by denial of the stay. The 1984-85 whaling season will end on April 1 of this year, and the next season will not begin for six months thereafter. Thus, there will be sufficient time for this case to be decided on appeal without significantly interfering with the Japanese whaling practices, should they be resumed. Therefore, petitioners have failed to meet the test of irreparable injury.

c) Other Parties Interested In This Action Would Be Substantially Harmed.

The third factor to be considered by the Court is whether a stay would result in substantial harm to other parties interested in this action. Virginia Petroleum Jobbers, supra. It is clear to the Court that such substantial harm would result. Should the petitions be granted, the Japanese would have no incentive to cease sperm whaling in violation of the IWC zero sperm whale quota. According to the plaintiffs’ reply memorandum, Japan has already taken 250 sperm whales this season. Thus, even should Japan honor the November 13, 1984 exchange of letters in which it agreed not to exceed taking 400 sperm whales this season, a minimum of 150 more of these already endangered creatures could be taken and killed before the season ends on April 1. The plaintiff organizations are vitally interested in the conservation and protection of these' and other whale species. That interest would be substantially harmed by the granting of a stay.

Further, the 1985 IWC conference is scheduled for next July. Preparations are being made for that conference at this time, and the eyes of the world are upon the reaction of the United States to this test of its commitment to the IWC. A stay at this time would only encourage other nations to circumvent the IWC and come to Washington to make separate agreements with the United States, outside the purview of the IWC and other international fisheries conservation agreements. Thus, the very stability and vitality of the International Convention For the Regulation of Whaling is tied up with the actions of the United States in response to the issues raised in this case. The United States Congress has decided to put this country in the role of policing the IWC quotas by using economic sanctions as an incentive for other nations to respect the IWC findings. Failure to put these sanctions into play in a situation such as the one at bar places that United States commitment in doubt on the eve of the next IWC conference, and could very well change the direction of the IWC itself by removing the major force for enforcement of its decisions. Thus, petitioners have failed to meet the third part of the test as well.

d) The Public Interest Lies With Denying The Petitions For Stay Pending Appeal.

The fourth factor to be considered by the Court is where does the public interest lie. “The public interest ia a uniquely important consideration in evaluating a request for [interim relief].” National Association of Farmworkers Organizations v. Marshall, 628 F.2d 604, 616 (D.C.Cir.1980). As the petitioners have recognized, the public interest lies with the protection and preservation of the whales. Congress, through the enactment of both Pelly and Packwood-Magnuson, has established this public interest in strengthening and supporting the IWC, by creating a mechanism for enforcing compliance with IWC decisions. This public interest would be thwarted by granting a stay and allowing the Japanese to avoid the Congressionally mandated sanction for violating the IWC zero sperm whale quota.

The Court is not unaware of the defendants’ responsibilities, including, but not limited to, that of the President to conduct our foreign policy and relations with foreign countries. The President is faced with a myriad of competing interests in his handling of foreign affairs. He must take into account not only international trade decisions, but also, in this instance, the viability of the IWC, the culture of the Japanese as it bears upon this matter, the effect the Court’s decision might have upon future negotiations, the ability of our own fishing industry, and others, to export their products to Japan, and a whole panoply of problems which the Executive Branch must face in the conduct of its duties under the Constitution and the laws of the United States. However, the question before the Court, even though one of first impression, is actually a very narrow one, namely, whether the Secretary of Commerce has any discretion to determine if certification is required in the face of violations of the IWC quota. As previously indicated, this Court, in its March 5, 1985 Opinion, held that, by virtue of the Congressional enactment of the Pelly and Packwood-Magnuson Amendments, Congress has mandated the actions of the Secretary in this instance. Thus, in light of the undisputed facts of the case at bar, certification has been made a ministerial duty. If the Executive Branch cannot, because of Pelly and Packwood-Magnuson, deal effectively with the multitude of problems presented by the relationship between the United States and Japan, it should take such matter to the Congress promptly, on an emergency basis, and perhaps should have done so before now, rather than wait until after this suit was filed. To repeat, this case represents a clear mandate of Congress of which the Secretary of Commerce and his subordinates have long been aware, as they have been aware of the actions of the IWC. The facts of this case indicate that the agency has consistantly acted in concert with the interpretation argued by the plaintiffs and accepted by this Court. Such Congressional and agency action has been in concert with the public interest in whale conservation. Thus, the public interest lies with denying the applications for a stay pending appeal.

CONCLUSION

To say that the denial of the stay “lets all the toothpaste out of the tube,” and makes resolution of many other problems impossible, while adversely affecting the conduct of diplomacy is, to say the least, an overstatement. The will of the Congress must be obeyed, even though the United States, a signatory to the Convention, wishes to ignore the IWC’s resolution as it pertains to Japan and thus frustrate that will. To ignore the foregoing facts and analysis would put the Court in the position of ignoring its duty to uphold the laws and the will of the first branch of our government, namely, the Congress of the United States, under Article III of our Constitution. Congress has been capable of acting quickly in an emergency before, and certainly could do so again, were the Executive willing to ask that the law be changed in view of the problems outlined in the Federal Defendants’ Motion for Stay Pending Appeal. This Court is not unsympathetic to the plight of the Executive Branch, but having carefully considered this matter on the undisputed record and the law, the Court is confident that it has done its duty as a matter of law and is correct in its decision of March 5, 1985.

By virtue of the foregoing, and having carefully considered the applications of the defendants and defendant-intervenors, the Court concludes that it has no choice but to deny their request for a stay pending appeal. It is, therefore, by the Court, this 13 day of March, 1985

ORDERED that the defendants’ and defendant-intervenors’ applications for a stay pending appeal be, and the same are, hereby denied.


author: WINDER, District Judge.

text:
    BROTHERHOOD OF LOCOMOTIVE ENGINEERS, an unincorporated labor organization, Plaintiff, v. INDUSTRIAL COMMISSION OF UTAH, ANTI-DISCRIMINATION DIVISION, and Union Pacific Railroad Company, a corporation, and Harvey Bert Jeppson, Intervenor, Defendants.
    Civ. No. C-84-02021W.
    United States District Court, D. Utah, C.D.
    March 5, 1985.

      Dennis C. Farley, Salt Lake City, Utah, for Railroad.
    Brian M. Barnard, Salt Lake City, Utah, for intervenor.
    Stephen W. Cook, Midvale, Utah, Harold A. Ross, Cleveland, Ohio, for plaintiff.
    Stephen G. Schwendiman, Asst. Atty. Gen., Salt Lake City, Utah, for defendant Industrial Com’n.
   MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

Oral argument on plaintiff's and defendants’ motions for summary judgment was heard on February 1, 1985. Stephen W. Cook appeared as counsel on behalf of Brotherhood of Locomotive Engineers (“BLE”). Defendant Union Pacific Railroad Company (“Union Pacific”) was represented by Dennis C. Farley while Stephen G. Schwendiman represented defendant Industrial Commission of Utah, Anti-Discrimination Division (“Division”). Brian Barnard appeared as counsel on behalf of Harvey Bert Jeppson, intervenor. The court has read the memoranda submitted and various authorities cited therein and has considered carefully the arguments made orally. Now being fully advised, the court renders the following decision and order.

I.

The parties stipulated to the facts for the purpose of disposing of the motions for summary judgment. Harvey Bert Jeppson worked as a locomotive engineer for Union Pacific from 1942 until 1984 and was a member of the Brotherhood of Locomotive Engineers, a railway labor organization. The BLE is the authorized collective bargaining representative for purposes of the Railway Labor Act for the craft of locomotive engineers in the employ of Union Pacific. On February 8, 1983, Mr. Jeppson turned 70 years old and continued working until September 10, 1984, when his seniority rights were terminated pursuant to Rule 115 of a collective bargaining agreement (“Agreement”) between Union Pacific and the BLE. Rule 115 of the Agreement is part of a bona fide seniority system and states:

TERMINATION OF SENIORITY-AGE 70. The established seniority rights of locomotive engineers shall automatically terminate effective as of the date the locomotive engineer reaches the age of seventy (70) years. No person shall be employed as locomotive engineer after reaching seventy (70) years of age.

Rule 115 was promulgated under the Railway Labor Act, 45 U.S.C. §§ 151-188 (1976).

On October 4, 1984, Mr. Jeppson filed a charge of discrimination on the basis of age with the Utah Anti-Discrimination Division against the plaintiff BLE and the defendant Union Pacific. The Division, acting upon the charges of Mr. Jeppson, requested a legal opinion from the Utah Attorney General’s Office interpreting Utah’s Anti-Discrimination Act, Utah Code Ann. §§ 34-35-1 to 34-35-38 (Supp.1983), (“UADA”). The Utah Attorney General’s Office provided an opinion on November 1, 1984, which concluded that “mandatory retirement even though pursuant to a ‘bona fide employment plan,’ as defined under federal law, based solely upon age is a discriminatory act under Utah law,” ... On December 4, 1984, the Division issued its determination that there was reasonable cause to believe that the BLE had violated UADA. The Division stated:

Although federal age discrimination laws allow for mandatory retirement at age seventy (70), under the provisions of a bona fide seniority system, the State of Utah Anti-Discrimination Act of 1965, as amended, is more restrictive. Therefore, the issue is not whether the Respondent is observing the terms of a bona fide seniority system, but that mandatory retirement at any age over forty (40) is a violation of the Utah Act, even when a bona fide seniority system is being observed.

The Division is continuing to process the claims of Mr. Jeppson in accordance with Utah law.

The BLE moved for summary judgment, seeking declaratory and injunctive relief arguing that: (1) The Supremacy and Commerce clauses preclude the application of Utah’s Age Discrimination laws to those 70 years of age and older; (2) the federal Age Discrimination in Employment Act preempts UADA as applied to those 70 and older; (3) the Railway Labor Act preempts section 34-35-6(1) Utah Code Ann. (1953), as amended, insofar as it attempts to regulate the terms and conditions of bona fide seniority plans a negotiated collective bargaining agreements; (4) UADA should be construed to permit bona fide seniority systems and bona fide employment benefit plans such as a retirement plan. Union Pacific incorporated the BLE arguments and authorities in its memorandum for summary judgment, reiterating that where retirement and seniority systems are negotiated in collective bargaining pursuant to the Railway Labor Act, there is an overriding federal interest which calls for the preemption of any state efforts to interfere with or regulate the terms of such agreements. Defendant Division moved for summary judgment contending that neither the Railway Labor Act nor the federal Age Discrimination in Employment Act preempt Utah’s anti-discrimination law.

II.

These motions present two principal issues of law. First, is UADA to be construed to prohibit mandatory retirement based solely on age even when in compliance with a bona fide employment plan. Second, if UADA is interpreted in this manner, is it preempted by federal law or does it impermissibly burden interstate commerce. The court will consider each issue in turn.

A. Utah Anti-discrimination Act (UADA)

Title 34, Chapter 35, of the Utah Code Anno. (Supp.1983), is entitled the Anti-discrimination Act. Section 6 of that chapter describes discriminatory or unfair employment practices as well as permitted practices. Two subsections of Section 6 are at issue in the present case. Section 34-35-6(1) states in pertinent part:

Notwithstanding any statutory provision to the contrary, ..., no person shall be subject to termination or retirement from employment on the basis of age, except where differentiation is based on reasonable factors other than age, or where age is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business.

Section 34-35-6(3) states:

It shall not be a discriminatory or unfair practice with respect to age to observe the terms of a bona fide seniority system or any bona fide employment benefit plan such as a retirement, pension, or insurance plan which is not a subterfuge to evade the purposes of this chapter except that no such employee benefit plan shall excuse the failure to hire any individual.

Although the language of a statute controls when it is sufficiently clear in its context, Ernst and Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), Nevada Power Co. v. Watt, 711 F.2d 913 (10th Cir.1983), a court may interpret a statute when its terms are ambiguous. The language of subsections 1 and 3 appear to be subject to more than one interpretation as evidenced by the conflicting advice rendered by the state of Utah. Under the principles of statutory construction, a court may consider legislative history in an attempt to ascertain the legislature’s intent and clarify the statute’s ambiguities. Such an endeavor in the present case is not particularly helpful, however. In many respects, UADA parallels the federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621 to 634 (Supp.1984) (“ADEA”). When enacted in 1967, ADEA protected persons between the ages of forty and sixty-five from arbitrary age discrimination. In 1978, ADEA’s upper age limit was extended to 70. When enacted, the ADEA included within it a provision, § 623(f), similar to that of UADA’s § 34-35-6(3) permitting the observation of a bona fide seniority system. In response to the holding in United Air Lines v. McMann, 434 U.S. 192, 98 S.Ct. 444, 54 L.Ed.2d 402 (1977), permitting mandatory retirement before the normal age of 65 (now 70), Congress amended that provision, § 623(f) of ADEA, by adding the following:

[N]o such seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual specified by section 12(a) of this title (40 to 70 years of age) because of the age of such individual.

In 1979 the Utah legislature amended § 34-35-6(1) to include the subsection at issue here and to abolish the upper age limitation. Utah now has an uncapped age provision. The legislature, however, left intact § 34-35-6(3) which appears to allow mandatory retirement at any age if done according to a bona fide plan.

The transcript of the Utah Senate’s debate when it amended the UADA in 1979 to include the part of subsection at issue here, provides little guidance in resolving the apparent conflict between subsections 1 and 3. Where legislative history does not shed clear light on the meaning of an ambiguous statute, the court is bound only to render a decision that is reasonable in light of the overall policy of the legislation under consideration. Anderson v. Babb, 632 F.2d 300, 308, (4th Cir.1980). Defendant Division contends that the language of 34-35-6(1) overrides all other provisions of 34-35-6. Subsection 3 nonetheless retains meaning, according to the defendant, because it allows “employees to alter the seniority status of employees or benefit contributions if pursuant to a bona fide plan.” The court rejects that interpretation of subsection 3. Union Pacific did alter the seniority status of Mr. Jeppson and that action was found by the Division to violate subsection 1. Moreover, it is a fundamental tenent of statutory construction that different portions of the same statute should be read and interpreted consistently with each other to avoid conflicts. United States v. Stauffer Chemical Co., 684 F.2d 1174, 1184, (6th Cir.1982), aff'd 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388.

Accordingly, the court finds that subsections 1 and 3 can be read consistently by recognizing that UADA prohibits termination or retirement of employees on the basis of age unless the termination or retirement is accomplished pursuant to a bona fide seniority or retirement plan under subsection 3. Subsection 3 is therefore a modifier of. subsection 1 with regard to bona fide seniority systems. The terms “termination or retirement” are thereby distinguishable from the observation of a “bona fide seniority system.” That interpretation is consistent with the overall statutory scheme of 34-35-6. Subsection 1 lists those employment practices which are discriminatory or unfair and includes provisions relating to age. Subsection 2 lists that which “shall not be a discriminatory or unfair labor practice.” Subsection 3 states that which is not a discriminatory or unfair practice with respect to age.

Because subsections 1 and 3 are construed as being consistent with one another, the court finds that Rule 115 is enforceable under state law.

B. Preemption and the Commerce Clause

The court need not rely solely on its interpretation of UADA to find that Rule 115 is enforceable. The court finds alternatively that UADA as presently applied to alter the respective rights of parties under a collective bargaining agreement made pursuant to the Railway Labor Act has been preempted by that act and burdens impermissibly interstate commerce.

The Railway Labor Act 45 U.S.C. §§ 151-188 (1976) (“RLA”) was enacted in 1926. Section 151a lists the purposes of the RLA which can be summarized as the facilitation of the collective bargaining process so as to avoid disruption of commerce. See Russell v. National Mediation Bd., 714 F.2d 1332, 1342 (5th Cir.1983). The RLA regulates labor relations of interstate rail carriers and air carriers and generally permits the parties to collective bargaining to agree upon whatever terms are mutually satisfactory.

Union Pacific contends that the RLA preempts the application of UADA section 34-35-6(1) to override Rule 115 of the Agreement because a collective bargaining agreement made pursuant to the RLA has the “imprimature of the federal law” upon it. In addition, the comprehensive nature of the federal labor laws established under the RLA precludes state intervention.

The basic framework of analysis for questions of federal labor law preemption is set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). See also Hasten v. Phillips Petroleum Co., 640 F.2d 274, 277 (10th Cir.1981). First, “[wjhen it is clear or may fairly be assumed that the activities which a State purports to regulate” are either protected or proscribed by federal law, then “due regard for the federal enactment requires that state jurisdiction must yield.” Garmon, 359 U.S. at 244, 79 S.Ct. at 779. Second, even if a state law touches upon conduct arguably governed by the federal scheme, the state may nevertheless regulate that conduct if it is “a merely peripheral concern” of the federal law, or if it involves “interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, [the court] could not infer that Congress had deprived the States of the power to act.” Id. at 243-44, 79 S.Ct. at 779. Although the court must consider both the state’s interests and the potential for interference with a federal scheme, it must do so against a background of decisions that has recognized the necessity for comprehensive national labor laws. As the Supreme Court has stated in Motor Coach Employees v. Lockridge, 403 U.S. 274, 286, 91 S.Ct. 1909, 1917-18, 29 L.Ed.2d 473 (1971):

A primary factor in this development [of a comprehensive national labor law] was the perceived incapacity of common-law courts and state legislatures, acting alone, to provide an informed and coherent basis for stabilizing labor relations conflict and for equitably and delineately structuring the balance of power among competing forces so as to further the common good.

Although the Lockridge case involved a jurisdictional dispute between state courts and the National Labor Relations Board, courts have recognized that a similar philosophical approach to preemption issues governs both the National Labor Relations Act and the RLA. See Railroad Trainmen v. Terminal, 394 U.S. 369, 383, 89 S.Ct. 1109, 1118, 22 L.Ed.2d 344 (1969). The United States Supreme Court examined the history of the RLA and found:

... The Federal government has determined that a uniform regulatory scheme is necessary to the operation of the national rail system. In particular, Congress long ago concluded that federal regulation of railroad labor relationship is necessary to prevent disruptions in vital rail service essential to the national economy.

United Transp. Union v. Long Island R.R. Co., 455 U.S. 678, 688, 102 S.Ct. 1349, 1356, 71 L.Ed.2d 547 (1982).

As Union Pacific and the BLE point out, courts have recognized that a collective bargaining agreement made pursuant to the RLA has the imprimature of federal law upon it. Railway Employes’ Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956), California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034 (1957). See also, Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 526, 101 S.Ct. 1895, 1907, 68 L.Ed.2d 402 (1981). As the Division notes, that “imprimature” may not in itself be sufficient in this case to preempt UADA when as here the state statute does not conflict directly with a provision in the RLA as was the case in Hanson and Taylor but rather with an agreement made pursuant to the RLA. See, Delta Air Lines v. Kramarsky, 650 F.2d 1287, 1300 (2d Cir.1981), vacated in part and rev’d, 666 F.2d 21 (1981), aff'd in part and vacated in part, Shaw v. Delta Airlines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). We must therefore examine the conflict between the UADA and Rule 115 and the nature of the federal and state interests according to the Garmon framework while being "guided by respect for the separate spheres of governmental authority preserved in our federalist system.” Raybestos, 451 U.S. at 522, 101 S.Ct. at 1905.

The RLA protects and promotes the collective bargaining process in an industry which by its very nature is involved in interstate commerce. The Union Pacific Railroad together with the companies it acquired in 1982, operates in 21 states. Rule 115 is in effect in those various states and the engineers subject to it move across state lines in the course of their employment. Rule 115 allows for mandatory retirement at age 70 and is thereby in accord with the ADEA. Utah’s UADA section 34-35-6(1), as presently applied, conflicts with Rule 115 as subsection 1 forbids mandatory retirement on the basis of age at any age. Although section 34-35-6(1) does not involve union organization or collective bargaining per se, see Peabody Galion v. Dollar, 666 F.2d 1309 (10th Cir.1981), it does have the possibility of conflicting with the RLA and could be viewed as intruding impermissibly on the collective bargaining process. See Int’l Ass’n of Machinists v. Wisconsin Employment Relations Comm’n., 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). Moreover, the unique nature of the railroad industry necessitates uniformity in agreements between the railroad company and its employees. A locomotive engineer whose ability to work is dependent on his seniority rights could be subjected to differing regulations concerning those rights as the train moved across state lines. Seniority systems and rosters which are multistate in nature would be difficult to administer. Such a result would undermine the uniformity in labor relations in the railway industry called for by Congress.

The Division, however, urges the court to consider the legitimacy and the deep rooted nature of the state’s interests in forbidding discrimination. The Division maintains that Congress intended that ADEA set only minimum standards and that states are free to give their own citizens greater protection against age discrimination than is required under federal law. The State of Utah, it is claimed, is concerned about those citizens who will not be adequately protected financially if forced to retire before they are ready to do so. The Division notes that both ADEA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 (1976) encourage states to eradicate all forms of discrimination. Moreover, nothing in the RLA addresses the problem of employment discrimination. Colorado Anti-Discrimination Comm’n v. Continental Air Lines, 372 U.S. 714, 83 S.Ct. 1022, 10 L.Ed.2d 84 (1963).

We acknowledge Utah’s interest in providing protection for its citizens against age discrimination. We do not find, however, that Utah’s interest outweighs the pervasive federal interests at stake here. When as here, the terms governing termination and seniority rights have emerged from collective bargaining undertaken pursuant to the RLA and are in accord with federal anti-discrimination law, the federal interest in precluding state interference with labor management, negotiations is paramount. See Raybestos, 451 U.S. at 504, 101 S.Ct. at 1895; Teamsters v. Oliver, 358 U.S. 283, 296, 79 S.Ct. 297, 304, 3 L.Ed.2d 312 (1959); Hanson, 351 U.S. at 232, 76 S.Ct. at 718 (1956). “Preemption may be either expressed or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’ ” Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Shaw v. Delta Airlines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 2899, 77 L.Ed.2d 490 (1983). Furthermore, another consideration adds to our conclusion that the UADA, section 34-35-6(1) as applied to override Rule 115 is preempted by the RLA. If Utah is permitted to alter the terms of seniority and termination agreements between Union Pacific and the BLE, interstate commerce will be impermissibly burdened. As noted above, Union Pacific operates in 21 states and Rule 115 is in force in those states. Permitting states to enforce their individual statutes to alter the terms of collective bargaining agreements made pursuant to the RLA would severely impair the uniform administration of railroad employee benefits. Labor relations would suffer. Fear of just that kind of chaotic disruption to interstate commerce, prompted the enactment of the RLA.

We conclude that Rule 115 is enforceable under Utah Code Ann. §§ 34-35-6 to 34-35-38 (Supp.1983). We also find that Utah Code Ann. § 34-35-6(1) (Supp.1983) is preempted by federal law insofar as it bears on collective bargaining agreements made pursuant to the Railway Labor Act. We find further that Utah Code Ann. § 34-35-6(1) as applied to override Rule 115 of the Agreement between Union Pacific Railroad and the Brotherhood of Locomotive Engineers is an impermissible burden on interstate commerce.

Accordingly,

IT IS HEREBY ORDERED as follows:

1. The Industrial Commission of Utah, Anti-Discrimination Division’s motion for summary judgment is denied.

2. The Brotherhood of Locomotive Engineers and the Union Pacific Railroad’s motions for summary judgment are granted.

3. Counsel for the Brotherhood of Locomotive Engineers should prepare a proposed order for injunctive and declaratory relief in accord with this memorandum decision.

      . In the railroad industry an engineer bids for jobs on the basis of seniority. Accordingly, the loss of one’s seniority rights as a locomotive engineer effectively precludes one from working in that position.

      . An earlier opinion rendered July 19, 1983, by Mark A. Madsen, legal counsel to the Utah State Retirement offices advised that Rule 115 was enforceable under UADA.

      . See supra, footnote 2 and accompanying text.

      . 29 U.S.C. § 623(f)(2) stated:
      It should not be unlawful for an employer, •employment agency, or labor organization to observe the terms of a bona fide employment benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual...

      . Because of § 623(f) of the ADEA, a bona fide plan could not affect the termination or retirement of an individual between the ages of 40 and 70.

      . Although the cited portion of Kramarsky was vacated, this court finds its reasoning helpful in the present case.

      . Union Pacific Railroad Company merged with Missouri Pacific Railroad Company and Western Pacific Railroad Company in 1982. Union Pacific operates in Washington, California, Idaho, Montana, Oregon, Nevada, Utah, Wyoming, Colorado, Nebraska, Kansas, Iowa, and Missouri. Missouri Pacific operates in Colorado, Texas, Kansas, Nebraska, New Mexico, Oklahoma, Missouri, Illinois, Arkansas, Tennessee, Louisiana, and Mississippi. Western Pacific operates in California, Nevada, and Utah.

      . Because the court finds that the application of UADA to Rule 115 is preempted by the RLA, we do not need to consider whether ADEA preempts section 34-35-6(1) of UADA.