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

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.

Harry A. Blackmun:

How do we know that?

Do we go out and count them?

Arnold I. Burns:

Well, they… believe it or not, Justice Blackmun, there is methodology for determining that.

It’s not precise, but it’s fairly-good.

And those statistics I gave you come from the Department of Commerce, Your Honor.

Harry A. Blackmun:

But only 300,000 minke whales?

Arnold I. Burns:

Right.

Now, Japan… the United States in exchange for Japan’s commitment promised that it would not certify Japan.

Respondents, a coalition of private–

Byron R. White:

How do you classify that agreement?

Arnold I. Burns:

–I classify it as an executive agreement between two sovereign nations, Justice White, binding on both.

Byron R. White:

And it was negotiated and signed by the Secretary of Commerce?

Arnold I. Burns:

No, it was negotiated and signed by the Secretary of Commerce on the one hand, with the approval of the Secretary of State, and a diplomat, an authorized diplomat of the Japanese government.

Byron R. White:

Cabinet level?

Arnold I. Burns:

Oh, yes.

The court of appeals in this case, one judge dissenting, affirmed the issuance of a writ of mandamus compelling the Secretary of Commerce to certify Japan, thus triggering the discretionary sanctions of Pelly and the mandatory sanctions of Packwood, a square holding that the Secretary of Commerce in these circumstances had absolutely no discretion in the certification procedure, and that any departure from the harvest quotas adopted by the International Whaling Commission in any circumstances would per se constitute a diminishment of the effectiveness of this international arrangement requiring this mandatory sanction in the Packwood amendment.

William H. Rehnquist:

Did the court of appeals majority, General Burns, hold out in so many words that last… that any violation of the harvest quotas would be a diminishment?

Arnold I. Burns:

In so many words.

They held that it was a per se violation.

Now, if the decision–

John Paul Stevens:

May I ask one question about the litigation.

Does your side concede that there’s a private cause of action under this statute?

Arnold I. Burns:

–We have difficulty, jurisdictional difficulty, which we argue in our reply brief after the issue was raised by respondents on the issue of standing in the case to begin with.

John Paul Stevens:

I understand.

I am not asking about standing.

I am asking if… do you think this statute includes a private cause of action for the… for a private citizen, enforceable by private cause of action?

Arnold I. Burns:

I think under appropriate circumstances, it would, yes, Your Honor.

John Paul Stevens:

You do agree with that?

Arnold I. Burns:

If the decision below is reversed and the international agreement between the United States and Japan, which is the single most important whaling nation in the world, if that decision below is reversed all whaling by Japanese nationals will surely end by April 1, 1988.

If the decision below is affirmed, the international agreement will be nullified.

Arnold I. Burns:

Severe economic sanctions will be issued against Japan.

And, importantly, the taking of whales will be exactly where it was before this all started, namely, completely and totally up in the air.

Warren E. Burger:

Would those sanctions be the sanctions that were in the wind, in the offing, two years ago when the bargain was struck?

Arnold I. Burns:

Oh, yes, and Mr. Chief Justice, you will find as one goes through this record that there have been six instances in which certifications have taken place, five of them under the Pelly amendment, and in each of those five instances involving Japan and the Soviet Union, Korea, Chile and Peru, sanctions that were issued because when we brought them to the bargaining table the countries involved fell into line and in each instance joined the International Whaling Commission.

Harry A. Blackmun:

Has there been any instance where the certification has not taken place?

Arnold I. Burns:

Justice Blackmun, there are three instances in which certification has not taken place, one in 1979 involving Spain, one in 1980 involving Taiwan, and one I believe in 1982 involving Chile.

In two of those instances there was not a clear and definite showing that there had been a harvest quota violation, but there was clear evidence that they were heading for it.

But the issue was averted by negotiation and diplomacy.

In the third case involving Chile, there’s no doubt that there was a violation of the harvest quota, and there was no certification.

To date there has been only one certification involving mandatory sanctions and that involved a certification of the Soviet Union just a year ago, in April of 1985.

The principal point that I wish to make–

Harry A. Blackmun:

I can understand your policy argument all right.

I think the hurdle you have to get cover is, what Congress intended.

Arnold I. Burns:

–And with specific reference to that, we need not speculate and we need not conjecture, Justice Blackmun.

We know the answer to that.

First of all, respondents argue that this language, despite the fact that it drips with words of discretion, really is clear-cut and mandatory.

The problem is that they do not really say that.

They say that the language of this statute sometimes is mandatory and ministerial and wholly lacking in discretion, and at other times it is fully discretionary and they do not tell us or enlighten us where the metaphysical distinction is.

Let me explain.

There are many matters which are the subject of the adoption of schedules.

In addition to harvest quotas you have prescriptions against taking female whales, taking suckling whales, taking… there are prescriptions against taking calves, there are prescriptions against taking whales in certain geographical areas.

There are prescriptions against using certain kinds of harpoons.

In all of those instances, as I understand respondent’s argument and there is a concession to this effect in the brief, and the court below has conceded that in those circumstances under this very same language you would have discretion, and the Secretary of Commerce felt that under the same language where you have a harvest quota violation, there would be no such discretion.

William J. Brennan, Jr.:

Mr. Burns, may I ask, is there some kind of agreement which provides a five-year moratorium on whaling ending in 1990?

Arnold I. Burns:

There is a, today a moratorium in force without any termination date.

It is not finite.

There is today–

William J. Brennan, Jr.:

Well, what’s the Japanese agreement, if there is a reversal… you have said that Japan would be out of the whaling business in 1988?

Arnold I. Burns:

–That’s correct.

William J. Brennan, Jr.:

Well, is it that, or are they simply going to abide by the moratorium which as I understood it, by its terms ends in 1990?

Arnold I. Burns:

They will abide by the moratorium, but there are 41 nations in the International Whaling Commission, Justice Brennan, only eight of whom are whaling nations.

There is practically no chance whatsoever that that moratorium will be changed.

As a practical matter–

William J. Brennan, Jr.:

No, my question was, what is it Japan has agreed to do in 1988, get out of whaling entirely, or simply to abide by the moratorium until its termination?

Arnold I. Burns:

–They have agreed to abide by the moratorium and as a practical matter, we say, the Secretary of Commerce says, the Secretary of State says, that this amounts to a cessation of commercial whaling.

William J. Brennan, Jr.:

In 1988?

Arnold I. Burns:

Yes, in 1988.

William J. Brennan, Jr.:

Not in 1990, or whatever the termination–

Arnold I. Burns:

April of 1988, at the end of the coastal whaling season which ends April of 1988.

Thurgood Marshall:

–This agreement between the Secretary of Commerce and Secretary of State, was Congress involved in that in any way, shape or fashion?

Arnold I. Burns:

No, it was not, Justice Marshall.

Thurgood Marshall:

So, you don’t know what their position is?

Arnold I. Burns:

Well, I do know what–

Thurgood Marshall:

Except what they said in the statute?

Arnold I. Burns:

–No, I know more than that, and I’d like to share it with you if I may, Justice Marshall.

Thurgood Marshall:

Is it in the record?

Arnold I. Burns:

Yes, it is.

You’ll find this at footnote 46 at pages 37 and 38 of our principal brief.

At the time, in 1979, this is what was said concerning the Pelly Amendment.

Now, the question must be asked, what did Congress have in mind when they adopted the Packwood Amendment.

They may… they provided for mandatory sanctions at that time.

What did Congress have in mind?

And the answer to the question is very clear.

What Congress had in mind was, in adding teeth and giving the Executive Branch additional negotiating chips at the bargaining table, and the idea was that after the Packwood Amendment took place, that offending nations or nations that might become offending nations, would no longer have two bites at the apple.

They would only have one bite at the negotiating apple.

And, that is not conjecture on my part, because Representative Brow said,

“I understand under the Pelly Amendment as it exists there are really two areas in which there are optional actions that can be taken by the Administration. “

“First, in certifying that a country is in violation of some international agreement, and there is a lot of flexibility in that certification. “

“And second, after a nation is certified, there is still discretion in determining whether a ban on imports of that country’s products will be in fact imposed against that country. “

Therefore, under Pelly we have two discretionary features, whereas in the Packwood Amendment you are really taking all of the discretionary features and putting them into their first category which is the certification of a nation being in violation of an international agreement.

Arnold I. Burns:

That tells us precisely what they had in mine.

Sandra Day O’Connor:

Mr. Burns–

Thurgood Marshall:

–It’s not precise to me.

Sandra Day O’Connor:

Mr. Burns, may I inquire what the effect is of the fact that Japan objected to the quotas, and therefore under the terms of the Act is not bound by them?

Does that mean that Japan is not in violation at all?

Arnold I. Burns:

It means that Japan has the right under international law, under the international compact originally entered into once they filed the objection to ignore the compact.

Sandra Day O’Connor:

But that fact has nothing to do with the imposition or determination to impose sanctions?

Arnold I. Burns:

Well, the point is that Japan in this case clearly would have been violating and departing from the schedules adopted, but was persuaded not to follow that course and an agreement was struck whereby they would take, starting now, for example, 1986 through 1988, 200 sperm whales in each of those two years.

They have taken 400 sperm whales in this last year.

Sandra Day O’Connor:

Yes, but is there any effect at all by virtue of the fact that Japan objected to the quotas and therefore supposedly wasn’t bound by them?

Arnold I. Burns:

The effect of that would be that absent the negotiation, absent sitting down at a table, absent an agreement, Japan would be whaling and continue to take whales without limitation, subject solely to its own determination, subject only to its own discretion.

Byron R. White:

But subject to sanction?

Arnold I. Burns:

And subject to the availability of sanctions under both the Pelly Amendment and the Packwood Amendment.

Byron R. White:

Which they might think were serious?

Arnold I. Burns:

There’s no doubt that they thought they were serious.

It was the threat and the fact that sanctions were clearly in the cards.

The record shows that they were told that, that persuaded Japan not to follow that course but to join in the community of nations and to leave seven whaling nations instead of eight.

Warren E. Burger:

Well, the basic agreement doesn’t seem to have much binding effect to it; at least, it permits a great deal of dilatory tactics here, doesn’t it?

Arnold I. Burns:

The answer to that is twofold.

One, Mr. Chief Justice, is that you can, we think, rely on Japan’s good faith, and second, you always have the clout which can be reimposed at any time, and that, I think, is the enforcement methodology.

Warren E. Burger:

Meanwhile, two or three years of crops of whales are taken contrary to the intent, at least the basic intent of the original agreement?

Arnold I. Burns:

The original agreement between the two sovereign nations, yes.

I mean, there isn’t a lawyer who has been trained or born who can draw an agreement that will protect against bad faith.

We do not think that is in this case.

Warren E. Burger:

Mr. Whitney.

Scott C. Whitney:

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

The Japanese petitioners agree essentially with the argument you have just heard.

However, we diverge from both the federal petitioners and the respondents on two issues that I’d like to–

Warren E. Burger:

Would you like to raise the lectern.

We aren’t… the other way might make it… then you’d get the benefit of those microphones.

Scott C. Whitney:

–The Japanese petitioners agree with the presentation, essentially with the presentation we’ve just heard by the federal petitioners.

However, we diverge from both the federal petitioners and the respondents on two issues which I would like to devote my time to discussing.

Before doing so, I’d like to clarify a couple of matters.

Justice Brennan, you asked about the moratorium.

The moratorium that was established will continue indefinitely unless the International Whaling Commission in 1990, based upon scientific evidence, decides that whale stocks are at a sufficiently high level to permit the resumption of whaling.

And it is partly a reflection of that fact, why the Murazumi-Baldridge agreement was to the advantage of the preservation of whales, because the Japanese would cease whaling, will cease whaling, if the agreement is not stricken down, as of April 1, 1988.

William J. Brennan, Jr.:

But may resume after 1990?

Scott C. Whitney:

Only if the International Whaling Commission dissolves the moratorium, a point which my predecessor pointed out, is highly unlikely since the International Whaling Commission normally votes 37 or something to one on the subject.

So, the moratorium for practical purposes will continue indefinitely.

The other point that I’d like to clarify, Justice Blackmun, is the matter of the whaling populations.

Those figures are given in the first portion, pages 3, 4 and 5 of the Japanese petitioner’s reply brief, and they give you two sets of figures.

The figures which are espoused by the preservationist ultras, which naturally tend to be somewhat lower than the figures which have been adduced and compiled by the United States government pursuant to the Marine Mammal Act, which are substantially larger, but you will find the particulars there and the citation of authority.

The bottom line is, as to the whales, the species of whales which are involved in the Murazumi-Baldridge Agreement, all three species are robust populations.

There is a good deal of apocalyptic discussion in the respondent’s brief about Moby Dick and blue whales and white whales, but they are irrelevant to this proceeding.

They are not encompassed in the Murazumi-Baldridge Agreement.

The first issue–

Byron R. White:

Well, what are they involved in?

Scott C. Whitney:

–I’m sorry?

Byron R. White:

Are they involved at all in this litigation?

Scott C. Whitney:

No, sir.

Byron R. White:

Are there any limits on them?

Scott C. Whitney:

They are the subject of independent protection, protective measures, and there have been… there has been no taking of those species of whales for a very long time.

Byron R. White:

Yes.

Scott C. Whitney:

Indeed, this is only indirect but one of the concerns is the rapid increase in the minke whale population which is a species involved in this agreement, is endangering the survival of the blue whale by encroaching on their feeding.

Now, we have a major difference concerning the relationship between the treaty, the International Convention for the Regulation of Whaling, and these two statutes.

We… there is no dispute that whenever a signatory to the convention exercises its rights under Article 53, that has the legal effect of exempting the party from any… from whatever act the IWC has taken to which they object.

The question then becomes, having exempted themselves under the treaty by an exercise of an absolute and unqualified treaty right, can that act of objecting be treated as an act which diminishes the effectiveness of the treaty?

Because, only if the exercise of this unqualified right can be shown to diminish the effectiveness of the treaty, are the statutes–

Byron R. White:

Absent any treaty at all, I suppose Congress could limit… could impose some limits on the taking of whales in certain waters?

Scott C. Whitney:

–I’m not terribly sure they could do that as to foreign nationals.

Scott C. Whitney:

But the point is that they have taken a position, actually it was the United States government that continually insists on such an objection mechanism in all multilateral treaties in which they participate.

We cite the example that the nonparticipation of the United States in the Law of the Seas Treaty came about because there was not an escape clause provision in it.

The theory, behind it, it sounds–

Byron R. White:

Is this… was this presented below?

Scott C. Whitney:

–Yes, sir.

Byron R. White:

Was it rejected?

Scott C. Whitney:

It was, I think fair to say, not even considered.

Byron R. White:

Is it among the questions presented in this case?

Scott C. Whitney:

Only indirectly.

It comes about in response to the problem of whether or not the moratorium and the zero quota, which were enacted, were in fact enacted in violation of the provisions of the treaty itself, and that is the other portion of the treaty.

Article 52 requires that the IWC meet four specific requirements.

The language is mandatory.

Nobody has contested the fact that this is mandatory.

And no one has also contested that the particular moratorium of the zero quota that are in issue here were in fact adopted in violation of Article 52, particularly adopted in violation of the provision that requires that the quota, the zero quota, be based upon scientific evidence.

William H. Rehnquist:

But, Mr. Whitney, the Pelly Amendment, as I read that Section 1, doesn’t talk about violation of a treaty.

It says, diminish the effectiveness of an international fishery conservation program.

Scott C. Whitney:

Yes, that’s the point I am striving to make, is that it is inherently paradoxical and self-contradictory to conclude, we submit, that the exercise of an unqualified treaty right to object somehow diminishes the effectiveness of the treaty which propounds and endows that unqualified right.

William H. Rehnquist:

But the Pelly Amendment doesn’t say “treaty”.

It says, International Fishery Conservation Program.

Scott C. Whitney:

Well, that’s… I take it that does embrace the convention that we’re talking about.

No one, at least, has challenged that point up to this time.

Thurgood Marshall:

Now, you challenge the amendment itself?

Scott C. Whitney:

I’m sorry?

Thurgood Marshall:

Are you bringing the validity of the Pelly Amendment itself–

Scott C. Whitney:

No, sir.

What I was indicating was that the zero quota and the moratorium adopted by the IWC was without dispute adopted in violation of Article 52.

It was indeed one of the reasons why the objection was lodged.

Now, the court below does not dispute this, the fact that… the point is that in this language the court below, or I take it the respondents, do not contend that Congress ever explicitly stated that if you exercise this right that you will diminish the effectiveness of the treaty because to do so abrogates that provision of the treaty.

The court below instead adopted a position which we call the coercion theory of treaty enforcement.

Under this theory the court below held that there… that the domestic statutes provide enforcement leverage to coerce parties to the treaty not to exercise their right to object, and they make the corollary point that there’s nothing in the treaty that prohibits the United States from using the threat of economic force to coerce a signatory not to exercise is rights to become exempt.

Scott C. Whitney:

We suggest that this is… merely to state that proposition is to show that it’s an essentially unsound and I think immoral concept, that the United States who is the author and who insists on having this kind of a provision, and frequently has used it… in fact, has not gone into treaties when that provision was not there, can selectively use the threat of economic force to coerce another nation not to exercise its rights and thereby exempt itself accordingly.

Warren E. Burger:

Your time has expired.

Scott C. Whitney:

Thank you, sir.

Warren E. Burger:

Mr. Rogers.

William D. Rogers:

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

In our judgment there is one issue properly before the Court in this case, and that is, what the law is, what Congress said.

There has been considerable discussion about a number of other interesting issues which are not, I think, except by the most attenuated notions strictly legal, such as whale populations.

Mr. Whitney has cited gross numbers for global populations but has not suggested to the Court that they may be misleading with respect to the capacity of whale populations in subgroups to maintain their levels.

There is considerable dispute amongst scientists about that question.

There is also the question Mr. Whitney has brought forward, whether the Commission violated its own conventions, which I am not sure is properly before the Court.

The issue of whether Japan has committed itself to stop whaling, I’d remind the Court that in the Baldridge-Murazumi Agreement the sole commitment Japan made was to withdraw its objections to the moratorium and quotas established by the Commission.

But that leaves before Japan the possibility of scientific whaling, aboriginal whaling and in the end, if it chooses’ to, the withdrawal from the convention, by which time the lever now exercised by the United States under the Packwood-Magnuson Amendment of exclusion from the U.S. fishing zone will, as the Baldridge affidavit in this very case points out, be considerably less significant to Japan because of the fact that American fishermen will have occupied the available take in the 200-mile limit toward the close of this decade.

In any event, we have suggested these are not the central issues before the Court.

The central issue before the Court is whether or not the Secretary had the discretion he purported to exercise here to agree not to impose the sanction under Packwood-Magnuson in which all sides agree is mandatory when there is a certification.

The issue, whether or not sanctions should be mandatory or should be the subject of extensive negotiation and diplomatic accommodation has been an issue present in the debates over congressional regulation of whaling from the very beginning.

In 1971, as has been pointed out, the Pelly Amendment was passed providing for a discretionary sanction of banning imports when the Secretary determined that there was an action diminishing the effectiveness of the international whaling system.

In that year, I might point out, Congress also enacted resolutions for the first time favoring a worldwide moratorium on whaling.

In our judgment, the language of Pelly is quite persuasive to the proposition that the Secretary of Commerce had no discretion with respect to the first stage of the process; that is to say, the stage with respect to certification, and that Congress clearly incorporated what it thought then to be appropriate discretion with respect to the second stage of the process, that is, whether or not to impose sanctions.

But if there is any doubt about the appropriateness of that interpretation of Pelly, that is to say mandatory on stage one with respect to certification, optional or discretionary with respect to sanctions in stage two, in our judgment that doubt is entirely removed by first the eight-year history of administrative implementation of the statute because, as Mr. Burns has pointed out, there were five certifications which occurred between the time Pelly was enacted and the time Congress considered the Packwood-Magnuson Amendment.

During that eight-year period in every instance, as far as Congress was aware in 1979, in every instance in which a nation had violated a numerical quota on taking, the Secretary acted quickly and automatically and certified to the President that a taking had occurred which diminished the effectiveness of the Convention.

And indeed, President Ford made the point crystal-clear in his explanation of the certification of Japan and the Soviet Union in 1974 when he said, whether or not the objection by the violating nation to the quota is legal does not alter the fact that exceeding quotas will diminish the effectiveness of the convention.

It constitutes, then, he said, a prima facie case; that is to say, a case which should suggest to the President the exercise of his discretionary authority to impose the sanction.

William H. Rehnquist:

Mr. Rogers, a couple times you referred to diminishing the effectiveness of the convention, which I realize is the language of the Packwood Amendment, but the Pelly Amendment says, diminish the effectiveness of an international fishery conservation program.

Is that of any significance?

William D. Rogers:

The reason for… the reason, Mr. Justice Rehnquist for the distinction in language was that the Pelly Amendment was first drafted to include, most importantly, the North Atlantic salmon regulatory system so that the broader term, “international fishery system”, was used, but it’s clear that Congress meant to include in Pelly the whaling convention system as well, for the legislative history.

But Packwood-Magnuson, as you can see, was specifically targeted on whaling.

So too in 1978, if it please the Court, the compliance had already begun to occur by Chile, Peru and South Korea, and yet because of their violations the Secretary automatically issued the certification.

In all five cases, however, the Executive Branch stayed its hand, it did not impose the Pelly sanctions.

It did not intrude on imports of fish products into the United States as it was authorized to do under Pelly.

And, this is precisely what led to the 1979 Pakwood-Magnuson Amendment.

William D. Rogers:

I should add that in–

Byron R. White:

To remove the discretion of the President?

William D. Rogers:

–I’m sorry?

Byron R. White:

To remove the discretion of the President?

William D. Rogers:

Precisely.

The discretion that the President had consistently exercised at phase two of the process, that is to say, the imposition of sanctions.

The Congressional consideration of the matter is crystal-clear in my judgment.

I draw the Court’s attention to the two very extensive hearings held by the Fisheries Subcommittee of the Merchant Marine and Fisheries Committee in the House, at which there was ample testimony both with respect to the eight years of practice of automatic certification and the fact that there is not one hint of any suggestion that anyone conceived that there was any discretion buried in the

“diminish the effectiveness’ language, in stage one of the certification process, and the fact that Congress relied explicitly on the representations of the Executive Branch spokesman that the Packwood-Magnuson Amendment then pending before the Congress would remove all discretion from the process and automatically impose the sanction that Packwood-Magnuson was proposing, an additional sanction to Pelly, that is to say, in this instance the elimination of the privilege of fishing within the 200-mile zone. “

Let me mention that this was a particularly appropriate exercise of Congressional authority.

It seems there can be no question, and indeed I doubt… I gather that the other parties to the case do not question the authority of the Congress to enact a statute saying exactly what we suggest it says, and that is to say, a statute which provides on the one hand that foreigners may fish in the 200-mile economic zone off the shores of the United States, a privilege which Congress granted in 1976, but at the same time conditioning that congressionally granted privilege upon compliance with the congressional standard that countries do not diminish the effectiveness of the whaling convention system.

William H. Rehnquist:

Mr. Rogers, all I have before me is the language of the Pelly and Packwood Amendments set forth in Addendum 1 to the Brief for the Federal Petitioner.

But looking at the small… this is about the Packwood Amendment… A, small Roman… no, I guess B, I’m sorry.

It says,

“If the Secretary issues a certification with respect to any foreign country then each allocation under paragraph. “

–what does the word “allocation” refer to?

William D. Rogers:

That is the privilege to fish… excuse me, Justice Rehnquist.

It is the privilege to fish within the 200-mile economic zone.

William H. Rehnquist:

So, we’re not talking about imports?

William D. Rogers:

No, no.

William H. Rehnquist:

But we’re talking–

William D. Rogers:

Not under Packwood-Magnuson.

I should make clear there are now two sanctions, one under Pelly which is still discretionary on the part of the President to ban imports of fish products.

That was 1971.

The second, under the 1979 Packwood-Magnuson Amendment to the 1976 Fisheries Act… the 1976 Fisheries Act permitted foreigners to fish within our 200-mile economic zone.

The 1979 Packwood-Magnuson Amendment conditioned that on compliance with non-diminishment of the effectiveness of the Convention.

That is to say, what is automatically lost in the event now of a violation is the right to fish within the 200-mile zone.

Byron R. White:

–And what was the alleged failure to comply this time?

Was it whaling at all?

Was it violating the moratorium or–

William D. Rogers:

Yes.

There’s no question but that–

Byron R. White:

–This wasn’t, for example, you took 51 whales rather than your quota of 50, it was taking any whales?

William D. Rogers:

–This was, and it is admitted by all parties to have been an intentional violation.

Byron R. White:

Of the moratorium?

William D. Rogers:

Of the moratorium.

Byron R. White:

No one should have taken any whales?

William D. Rogers:

First on sperm whales, and indeed it should be understood, Mr. Justice, that the sperm whale ban went into effect, we sued, and then the agreement occurred.

This was the precise sequence of events.

But Japan continued to hunt sperm whales on the assumption that they were going to get the agreement of the Executive Branch even after the ban sperm whales went into effect.

Now, there’s not only a ban on sperm whaling by the Commission but also a worldwide global moratorium.

They are continuing to fish and have not been sanctioned, precisely because of the Baldridge-Murazumi Amendment.

We admit that an inadvertent or unintentional violation would be a different story, but an intentional violation of this magnitude clearly in our judgment diminishes the effectiveness of the convention system.

Let me go back, if I may, to a few more points with respect to the legislative history which as I have indicated in our view is crystal-clear.

Sandra Day O’Connor:

What about the legislative history at the time of the adoption of the Pelly Amendment rather than later?

Your comments have really been directed to hearings conducted, as I understand it, before adoption of the Packwood Amendment?

William D. Rogers:

That’s correct, Justice O’Connor.

The reason I have directed my attention to that is that in our judgment, which may be somewhat different from that of the Court of Appeals below, since we are proceeding under Packwood-Magnuson, it is Packwood-Magnuson that we intend to invoke and it is Packwood-Magnuson that we think implies no discretion with respect to sanctions.

We have focused on that.

The second reason we have focused on it is that in our judgment if there’s any question about the diminished effectiveness formula in Pelly in ’71, it acquired a hard, fixed meaning in the intervening eight years by, A, Executive Branch behavior; B, representations by the Executive Branch to the Congress in 1979 as to what the language meant; and C, Congress’s explicit statement, we now want to exclude all discretion.

But to go back to your point, Justice O’Connor, there is good legislative history in our judgment, most particularly in the report with respect to the legislation to the Senate, which indicated that diminished effectiveness with respect to a quota violation should be certified.

Sandra Day O’Connor:

Well, I think the language that one would have to look at is the language that says, when the Secretary of Commerce determines that the fishing operations are being conducted in a manner or under circumstances which diminish, all that language–

William D. Rogers:

Yes.

Sandra Day O’Connor:

–which is perhaps not necessarily definitive, doesn’t admit of the certainty that you speak of–

William D. Rogers:

In the abstract, you are right, but in the context first of the fact that this Pelly Amendment in connection with whaling was directed to reinforce Congress’s effort to strengthen the International Whaling Convention system, and the fact that as Congress saw it numerical quotas were the very heart of that system.

In our judgment, therefore, a violation of quotas as posed to the other marginal violations that Mr. Burns mentioned earlier on, violation of that quota was understood at that time to be something which inescapably would diminish the effectiveness of the convention system because it was the maintenance of rigid ceilings on takes, and in Congress’s view hopefully, eventually a total moratorium on any taking whatsoever would inevitably constitute a diminishment of the effectiveness of the Convention.

To put it the other way, it is in our judgment very hard to comprehend how the intentional violation, the wholesale substantial violation of the supreme act of the International Whaling Commission, that is to say the establishment finally, after a decade of pressure from the United States, the establishment by the International Whaling Commission of a firm worldwide global moratorium on any further taking of any kind of whales.

The flouting of such a supreme act by the Commission could enhance the prestige, maintain the dignity, preserve the integrity of the Convention system.

Sandra Day O’Connor:

–Well, I know it’s not this case, but suppose that it were determined or alleged that a nation had taken a single whale by mistake.

William D. Rogers:

By mistake?

Sandra Day O’Connor:

After that moratorium.

William D. Rogers:

We would not be here, and we would not contend that would diminish the effectiveness.

We would not contend that the taking accidentally of a lactating whale, which is prohibited under the Convention system, where non-intentional flouting… if it were not an intentional flouting would diminish the effectiveness of the Convention.

It’s the Convention system that really is the center of the scheme and the very reason why we’re here.

William H. Rehnquist:

Are you going to deal with the availability of mandamus in your oral argument?

William D. Rogers:

Yes, I’ll say a word about that, if I may, Justice Rehnquist, as soon as I finish up with respect to the legislative history point.

I would suggest, with all due respect, that so palpable is it that Congress was intending to close what it saw as the loophole in the Pelly Amendment by enacting the Packwood-Magnuson Amendment, that there can’t be any doubt about the appropriate interpretation of the Packwood-Magnuson Amendment upon which we rely.

The idea that there is discretion with respect to intentional quota violations lurking in the certification stage is advanced really in this case for the first time in history of the entire consideration of these statutes, and it would in our judgment bring in by the back door the very discretion that Congress intended to eliminate from the Packwood-Magnuson statutory scheme relating to the privilege of foreigners to fish in our waters.

This is a view, incidentally, which was embraced by the defendant, Mr. Baldridge, himself when he communicated with the author of the amendment, Mr. Packwood, just a few weeks before he made the bilateral arrangement with Japan when he said, in response to Mr. Packwood’s statement,

“I see no way around the logical conclusion that a nation which ignores the moratorium is diminishing the effectiveness of the IWC. “

Mr. Baldridge said, “I agree”.

Quote, “Since any such whaling”, that is to say, in violation of the quotas,

“any such whaling attributable to the policies of a foreign government would clearly diminish the effectiveness of the IWC. “

Now, we don’t contend that this subsequent exchange bears on the congressional intent in 1979.

You have heard a good deal about deference to Executive Branch officials.

In our judgment, if any deference is due to any Executive Branch official it’s due to the views and representations upon which Congress relied of the senior officials who testified to the House in connection with this Packwood-Magnuson Amendment at the time it was under consideration, Mr. Frank and Augusto Negroponte.

And in our judgment we are persuaded that the Court will on its own examination of the legislative history be similarly convinced that their testimony is decisive as to the appropriate interpretation of the Packwood-Magnuson Amendment.

Sandra Day O’Connor:

You still haven’t mentioned anything about the legislative history of the Pelly Amendment, I noticed.

William D. Rogers:

Well, I meant to say, and I will mention again if I may, Justice O’Connor, in our view the legislative history of Pelly is as good, although of course no enlightened by the eight years experience thereafter with respect to the legislative intent of the Congress at that time.

I draw your attention, if I may, to our brief at page 4 in which we point-out the legislative history of the Pelly Amendment, and in addition, Your Honor, on page 18 and 19 of… and specifically with respect to the statement of Representative Pelly at the bottom of page 19 in our brief, in which he explains that whales are a notable example of overfished resources.

And then, the legislative history goes on to point out through Representative Dingell that in Section 8, explaining Pelly,

“Whenever the Secretary of Commerce determines foreign nationals are conducting fishing operations. “

et cetera,

“he must certify this fact to the President of the United States. “

Also, Senator Stevens who said,

“Section 8 directs the Secretary of Commerce to certify to the President the fact that nationals are conducting fishing operations in a manner which diminishes the effectiveness of the program. “

John Paul Stevens:

May I ask a question about the language of the statute that troubles me a little.

There are in fact two parts, one, he must determine; and if he determines, he must certify.

And the language, “to certify”, is mandatory.

Is it your position that the order should compel him to make a determination he has not yet made, or that he should certify a determination that he has already made?

William D. Rogers:

It’s an issue that we hadn’t focused on, Justice Stevens, because the order as it came out of the district court was an order enjoining the agreement, but I would suggest that the order appropriately, if it’s expressed in affirmative, mandatory terms, would be that he certifies, that he has no discretion not to certify.

John Paul Stevens:

But that is if he has made a determination, but we treat it as though it is so clear, that the facts are there, that he must certify that he has made a determination even if he hasn’t?

Apparently he hasn’t made a determination–

William D. Rogers:

He hasn’t made a determination, but our position is, on that, that an intentional wholesale violation of a numerical quota, and most dramatically and particularly a wholesale violation of the supreme act of the Commission, the global moratorium, is inevitably, must by any standard be determined to be a diminishment of the effectiveness.

Byron R. White:

–Well, he can’t be… he has no authority to certify unless he makes that determination, so if he certifies he has to say there is a diminishment of the fishery?

William D. Rogers:

That’s correct, yes, Your Honor.

John Paul Stevens:

He has to say, “I have determined that”–

William D. Rogers:

“I have determined, and I therefore certify. “

that’s right.

And he should be ordered to do both, in essence, in our judgment.

With respect to remedies and a variety of other aspects that have been raised here, in our judgment the courts below were correct in determining that Secretary Baldridge had exceeded his authority in entering into the agreement that he did.

William H. Rehnquist:

–Well, the mandamus doesn’t issue in a case where someone has exceeded their authority.

It’s issues in a case where they have no choice but to follow a particular course of action.

William D. Rogers:

Yes.

Our point is, Justice Rehnquist, that there was no discretion here.

William H. Rehnquist:

Well, but you know, we don’t have many cases where a writ of mandamus has been issued to a Cabinet officer, and in the area of foreign affairs.

William D. Rogers:

You have not had many cases either where his authority is so clearly limited as it was here.

Congress granted the privilege of fishing in U.S. waters but conditioned that privilege on, as we say under the statute, an avoidance of a violation of a numerical quota by the Whaling Commission.

Harry A. Blackmun:

Wouldn’t a declaratory judgment give you all the relief you need?

William D. Rogers:

Beg pardon?

Harry A. Blackmun:

Wouldn’t a declaratory judgment give you all the relief you need?

William D. Rogers:

I think the declaratory judgment would give us relief.

I think also, the injunction which was issued by the court below also would give us the relief we need.

The relief issued by the court, the district court, was in fact a declaratory judgment and an injunction.

There’s been a good deal of talk here about mandamus, but although we contend that we are well within traditional concepts of mandamus, that is to say that there was no discretion here, and mandamus is classically available with respect to an act as to which the federal official has no discretion, we also believe we are fully entitled to a declaratory judgment and injunction.

Byron R. White:

You say the Secretary should not have purported to permit another country to take a certain number of whales contrary to the moratorium?

William D. Rogers:

Correct.

He had no authority, and he was exercising a particularly clearly delegated responsibility from the Congress.

The responsibility that he was exercising was the responsibility to administer the 200-mile fishing zone.

One law in 1976 told the Secretary, issue licenses for foreigners, issue allocations to foreigners.

William D. Rogers:

The other law in 1979, Packwood-Magnuson, told him, take those allocations back if anybody violates a numerical quota from the Whaling Convention.

Congress had the authority to give that power, to give that responsibility.

It had the authority to take it away.

This is not, if you will, the usual foreign policy case.

It’s not like Dames and Moore, for example, or Regan versus Wald, or the typical case in which plaintiffs are here asking you to overrule a cooperative Act between the Congress and the Executive Branch with respect to foreign policy, as certainly was the case in both of those two instances.

Warren E. Burger:

I take it you would not say that it’s wholly divergent from foreign policy considerations, though?

William D. Rogers:

No.

I certainly wouldn’t, Mr. Chief Justice, and I also would not say that merely because a case happens to affect foreign policy, or political questions in general, this Court should stay its hand.

This Court’s responsibility, as Justice Marshall has told all of us so often, is emphatically to declare what the law is.

We are only here asking you to declare what the law is.

The mere fact that your declaration will have international consequences, the mere fact that your declaration in other cases will have political consequences, is no reason to avoid what is the very essence of this Court’s responsibility.

If it is, it’s a new canon of statutory interpretation.

Thank you.

Warren E. Burger:

Mr. Burns, you have three minutes remaining.

Arnold I. Burns:

Thank you, Chief Justice.

The Secretary in this case did indeed make a finding and did indeed make a determination.

He said after consulting with reputable scientists, after consulting with our United States representative to the International Whaling Commission, and after consulting with the Secretary of State on some delicate foreign policy considerations, he said, and this is in our Addendum 3 at page 6-A, and I quote,

“I believe that a cessation of all Japanese commercial whaling activities would contribute more to the effectiveness of the International Whaling Commission and its conservation program than any other single development. “

We rely on plain language which clearly gives him discretion.

The Congress had three opportunities to tell us that he was not to have that discretion.

In 1971 when they passed the Pelly Amendment, and we too have challenged our adversaries to show us legislative history, language to the contrary, they have not done so.

In 1978 the Pelly Amendment itself was amended and it is very clear that the Congress, and our papers demonstrate, regarded this as a discretionary matter.

In 1979 when the Packwood Amendment came up, Congress had the perfect opportunity to take the middle man out of the process.

There was no need to have the Secretary of Commerce.

They could have written the law to say very clearly that where there is a violation of international harvest quotas under the International Whaling Commission, that is ipso facto a violation.

Senator Packwood introduced such a bill.

It did not pass.

So that, we have a very clear legislative history showing that Congress never did restrict the Secretary in implementing its, Congress’s, statute in areas involving enormous expertise, environmental law, conservation dynamics, and foreign policy.

Thank you so much.

Warren E. Burger:

Thank you, gentlemen.

Warren E. Burger:

The case is submitted.