Court Rejects Rehearing on Banned Shrimp Case

Turtle Island Restoration Network v. Evans, 2002 WL 434815 (Fed. Cir. 2002).

S. Beth Windham, 3L

The Court of Appeals for the Federal Circuit rejected a petition for a rehearing en banc in Turtle Island Restoration Network v. Evans.1 The Federal Circuit previously decided banned countries may import shrimp if the individual shipments contained equipment to prevent harm to sea turtles.2 While the court failed to issue an opinion on the merits, Circuit Judges Garjarsa and Newman filed a lengthy dissent.

The dissenting judges began their analysis by noting that the majority reached its conclusion through unreasonable statutory interpretation. Section 609 (b)(1) of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act bans “the importation of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely sea turtles”3 unless the nation has been certified by the President. The majority claimed section 609 only prohibited the importation of shrimp from uncertified countries without TED equipment.

The dissent argued that section 609 bans importation of shrimp unless the foreign nation is certified by adopting measures similar to those promulgated by the United States or harvesting in an area that does not endanger sea turtles. They faulted the majority for concluding that 609 did not ban particular shipments if they were harvested with TED-equipped trawlers. Instead, the dissent argued TED-equipped fleets still may drown some sea turtles and are at best 97% effective.

The dissent found that section 609 clearly bans the importation of shrimp harvested with mechanical trawlers unless the harvesting nation is certified. They also expressed concern that the majority’s holding would have a detrimental effect on the incentive for foreign nations to participate in the certification process and the long-term survival of sea turtles.

The dissent also criticized the majority for failing to follow legislative history. Congress had two goals behind section 609; to protect sea turtles globally and to protect the domestic shrimp industry from competition. The majority held that protection of sea turtles was not the policy behind the act, but rather the protection of the U.S. domestic shrimp industry, and argued that TED installation on vessels not serving the US market would not affect the domestic shrimp industry. The dissent countered that by only requiring TEDs on a small percentage of foreign vessels, the foreign shrimp industry has smaller costs and stands at a competitive advantage to US shrimpers. The dissent claims the majority failed to protect the domestic shrimp industry and refused to address the protection of sea turtles at all. The dissent concluded by stating the majority “unreasonably construed a statute that was written to protect turtles so as not to protect them.”4

Endnotes
1. Turtle Island Restoration Network v. Evans, 2002 WL 434815 at *1 (Fed. Cir. August 8, 2002).
2. Turtle Island Restoration Network v. Evans, 299 F.3d 1373 (Fed. Cir. 2002). For an analysis of the original case see Windham, S. Beth, Court Allows Banned Countries to Import Shrimp, 12: 1 SandBar 1 (2002) (available online at http://www.olemiss.edu/orgs/ SGLC ).
3. 103 Stat. 988, 1037 (1990).
4. Id. at *13-14.