Japan Whaling Association v. American Cetacean Society

PETITIONER: Japan Whaling Association
RESPONDENT: American Cetacean Society
LOCATION: Pennsylvania Department of Public Welfare

DOCKET NO.: 85-954
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 478 US 221 (1986)
ARGUED: Apr 30, 1986
DECIDED: Jun 30, 1986

ADVOCATES:
Arnold I. Burns - on behalf of Petitioners in No. 85-955
Scott C. Whitney - on behalf of Petitioners in No. 85-954
William D. Rogers - on behalf of respondents
William P. Rogers - on behalf of Respondents

Facts of the case

Question

Media for Japan Whaling Association v. American Cetacean Society

Audio Transcription for Oral Argument - April 30, 1986 in Japan Whaling Association v. American Cetacean Society

Warren E. Burger:

Mr. Burns, I think you may proceed when you are ready.

Arnold I. Burns:

Thank you, Mr. Chief Justice, and may it please the Court:

This too is a case of statutory construction.

The question before the Court is whether an executive agreement between two sovereign nations, the United States and Japan, the practical effect of which is to end whaling by Japanese nationals no later than April 1, 1988, is to be nullified by an interpretation of two federal statutes known as the Pelly Amendment and the Packwood Amendment, which strips the Executive Branch, of any and all discretion and mandates, mandates severe economic sanctions against Japan, a country whose nationals take whales in excess of the harvest quotas established by the International Whaling Commission.

Byron R. White:

You are not suggesting, then, if Congress clearly intended to do that it would be unconstitutional?

Arnold I. Burns:

No, I am not, Your Honor.

We are talking about a statute enacted by Congress pursuant to which Congress directed the Executive Branch to implement and to execute the law, and I think that you'll find that as the argument progresses, Justice White, there's been a very happy collaboration between the Congress and the Executive Branch which has together made tremendous strides over the years in the conservation and protection of whales.

Byron R. White:

You wouldn't know that from the brief that the Congress has filed in this case.

Arnold I. Burns:

No, you wouldn't, but I shall try to embellish that point as we proceed.

The Pelly Amendment, the principal statute, provides, and I should like to quote it:

"When the Secretary of Commerce determines that nationals of a foreign country, directly or indirectly, are conducting fishing operations in a manner or under circumstances which diminish the effectiveness of an international fishery conservation program, the Secretary of Commerce shall certify such fact to the President. "

Now, if there is a certification, then the statute goes on to provide that the President may direct the Secretary of the Treasury to prohibit the bringing or importation of fish from the offending country into the United States.

Now, there is no issue in this case, we all agree, that that portion of the statute dealing with the President's authority is purely discretionary.

The Packwood Amendment, enacted in 1979, eight years after the Pelly Amendment was enacted, contains a similar certification provision.

Under the Packwood Amendment, if there is indeed a certification, then the Secretary of Commerce, working with the Secretary of State, must... must reduce the amount of fish by at least 50 percent that the offending country can take from United States fishery waters.

There is no issue in this case--

Byron R. White:

That's the statute that we're dealing with, or we're dealing with the two of them together?

Arnold I. Burns:

--Yes, but as the court below found and as I think we all agree, the language which I quoted in the Pelly Amendment is the language which the Court must address in this case.

There is no issue but that the sanction in the Packwood Amendment is a mandatory sanction.

We all agree.

The National Whaling Commission, created by the International Convention for the regulation of whaling, by the adoption of schedules among other things imposed a zero quota for the harvesting of sperm whales effective in April of 1984, and adopted a complete moratorium on all commercial whaling to be effective in April of 1986, this very month.

Japan filed timely objections to these schedules, and as a consequence under international law is not bound to abide by them.

There is no dispute in the case about that.

On November 13th, 1984, following extensive negotiations in which the United States made it very clear to Japan that sanctions under these amendments were definitely in the cards, the United States and Japan struck a deal.

In exchange for Japan's pledge to assiduously adhere to new quotas that were established in respect of sperm whales, minke whales and Bryde's whales, in the interim, Japan would definitely give up all commercial whaling by April of 1988.

Harry A. Blackmun:

Mr. Burns, I'm not an expert in whales.

What is the second type that you mentioned, minke, is it?

Arnold I. Burns:

Minke whale.

It is a smaller whale, Your Honor.

There are in the world today one million, roughly, sperm whales, roughly 300,000 minke whales, and roughly 30,000 Bryde's whales.