Court Allows Banned Countries to Import Shrimp

Turtle Island Restoration Network v. Evans, 284 F.3d 1282 (Fed. Cir. 2002).

S. Beth Windham, 3L

The Court of Appeals for the Federal Circuit recently reviewed the ban on the importation of shrimp from countries using fishing equipment that harms sea turtles.1 Under current U.S. law, nations “certify” that their fishing practices use technology to protect sea turtles from being ensnared in trawl nets. In March, the court found that the U.S. may allow importation of individual shipments from uncertified countries if the countries represent that the shipments were harvested in a manner that does not threaten turtles.

Shrimp, Turtles and International Imports
Because sea turtles are unintentionally caught by shrimp trawls, resulting in fatalities, the U.S. adopted regulations requiring shrimp trawls in U.S. waters to install turtle excluder devices (TEDs) when operating where sea turtles are found.2 A TED is a metal grid incorporated in the net which releases turtles from the net.

The U.S. also requires nations who import shrimp to use TEDs under a 1990 statute.3 The act requires the Secretary of State to negotiate agreements with foreign nations for the protection and conservation of turtles. Section 609 (b)(1) states “the importation of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely sea turtles shall be prohibited.” The statute allows the President to exclude countries from the ban by certifying that the harvesting nation has a program to regulate the effect on sea turtles, a similar method of shrimp harvesting, a comparable rate of catching turtles as the U.S., and doesn’t pose a threat to sea turtles.

In its regulations, the State Department has interpreted § 609 to allow importation of shrimp if the importing nation is certified under the statute.4 However, the agency has also allowed importation of individual shipments of shrimp without certification if shown that the shrimp were taken in a way that does not harm sea turtles. This would allow importation of aquaculture-grown shrimp, hand caught shrimp and shrimp caught by boats that use TEDs. It also allows a nation to regulate shrimp shipments sent to the U.S. rather than its entire fleet.

Court of Appeals Analysis of § 609
The plaintiff Turtle Island Restoration Network (Turtle Island) challenged the State Department’s interpretation of § 609.5 After a lengthy history of litigation, the Court of Appeals for the Federal Circuit reviewed whether the State Department regulations were a proper construction of the statute. Turtle Island argued that § 609 could only be applied on a nation-by-nation basis, not a shipment-by-shipment basis.

Statutory Language. Turtle Island argued that the language of § 609 as a whole authorizes a nation-by-nation determination.6 They reasoned that because § 609(a) directs the Secretary of State to negotiate with foreign nations and § 609(b)(2) is a method for nations to be exempt from the ban, then the embargo provisions refer to individual nations rather than individual shipments of shrimp.

Rather than infer a nation-by-nation method, the court found that the plain language of the embargo provision makes it clear that the “importation of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely such species of sea turtles shall be prohibited.”7 Because the clause “which have been harvested” modifies the word “shrimp,” the language did not justify a ban on individual shipments of shrimp caught using technology that does not harm turtles. The court reasoned that if certification were the only way to import shrimp, then language in (b)(1) stating “which have been harvested with commercial fishing technology which may affect adversely such species of turtles” would be superfluous.

Legislative History. Turtle Island also argued that the legislative history of § 609 supports a nation-by-nation determination. Claiming that the primary goal of the statute was to protect endangered sea turtles internationally, Turtle Island relied on several senators who characterized their positions with regard to § 609 by using language such as “other nations” and “countries.”8 The government responded by contending that Congress intended to delegate the determination of which shrimp could be embargoed.

Rejecting both of these arguments, the court found that Congress may have delegated the determination of which shrimp harvesting methods harmed turtles, but did not delegate the ability to determine the scope of the embargo. Turning to Turtle Island’s arguments, the court stated “we find nothing in the legislative history to mandate a nation-by-nation approach, and we find little, if any, indication that minimizing sea turtle drownings was Congress’s main concern when it enacted section 609.”9 Rather, the Court determined the primary purpose of the act was to protect the domestic shrimp industry, as evidenced by the support of Gulf of Mexico state senators who opposed the national TED regulations but hoped the ban would allow the American shrimp industry to compete with foreign shrimp industries by requiring all imports to use TEDs, thereby creating a “level playing field.”10 The court went on to hold that “Congress was concerned with those foreign vessels harvesting shrimp for the United States market, not foreign vessels harvesting shrimp for foreign markets.”11

Furthermore, the court compared several other statutes in which Congress required nation-by-nation rather than shipment-by-shipment embargoes. Noting that the nation-by-nation statutes explicitly stated the embargo was extended to all products from the countries, it reasoned that when Congress left out this language in § 609, it intended a shipment-by-shipment embargo.

Policy Arguments by Turtle Island. Turtle Island made two final efforts to argue that the statute was being improperly interpreted. First, it argued that only requiring an exporting nation to equip TEDs on vessels fails to serve the purpose of § 609, as it will result in turtle fatality. Referring to its finding that preserving turtles is not the primary goal of the statute, it concluded that even if preserving turtles was an important aspect of the statute, it was better to equip a few vessels with TEDs than no TEDs at all.12

Lastly, Turtle Island claimed that allowing uncertified nations to export some shrimp would decrease the incentive for nations to become certified at all. Rather than becoming certified, nations could simply equip vessels catching shrimp to be exported to the U.S. with TEDs. The court dispensed with this argument stating, “because we find that the combination of plain language, legislative history, and comparison with other statutory provisions decisively establishes the meaning of section 609(b), we need not consider more attenuated arguments on the wisdom of the governments implementation of section 609.”13

Conclusion
Ultimately, the Court of Appeals for the Federal Circuit held that the primary purpose of the 1990 statute requiring certification to exporting countries was to protect the domestic fishing industry rather than sea turtles, finding the State Department’s regulations a permissible interpretation of the Act.

ENDNOTES
1. Turtle Island Restoration Network v. Evans, 284 F.3d 1282 (Fed. Cir. 2002).
2. 50 C.F.R. §§ 223.206, 223.207 (2002).
3. 16 U.S.C. § 1537 note (2002).
4. See Revised Guidelines for the Implementation of Section 609 of Public Law 101-162 Relating to the Protection of Sea Turtles in Shrimp Trawl Fishing Operations, 64 Fed. Reg. 36,946 (July 8, 1999).
5. 284 F.3d at 1287.
6. Id. at 1292.
7. 16 U.S.C. § 1537 note.
8. 284 F.3d at 1293.
9. Id.
10. 35 Cong. Rec. 15,511 (1989).
11. Id. at 1295.
12. Id. at 1296.
13. Id.