Tuesday, February 21, 2012
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Court Rejects Environmentalists’ Challenge to Shrimping Program
By KENNETH OFGANG, Staff Writer
A California-based environmental group’s challenge to the State Department’s process for determining exemptions from a federal law banning shrimp exports was properly dismissed on res judicata grounds, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The panel affirmed U.S. District Judge Claudia Wilken’s grant of judgment on the pleadings in favor of the government.
The plaintiff was the Turtle Island Restoration Network, which has been pursuing litigation and other activities on behalf of sea turtle protection. TIRN was at one time part of the Earth Island Institute, which filed its first lawsuit over the issue in the early 1990s, but is now a separate organization.
NEPA Violations Charged
The suit claims the State Department violated the National Environmental Policy Act and the Endangered Species Act by failing to conduct a full environmental assessment, with public notice and comment, before issuing certifications under Public Law 101-162, Sec. 609(b). The law requires that before foreign shrimpers are exempted from the ban, the government must certify that they have turtle protection programs at least equivalent to ours.
The department’s guidelines for implementing Sec. 609(b) were adopted in 1991 and revised in 1993, 1996, 1998, and 1999.
The original EII suit alleged that the guidelines conflicted with the statute because they improperly exempted large areas from the ban and neglected to consider the actual number of sea-turtle takes in the countries that received certification. The Court of International Trade upheld the 1993 guidelines.
The department later amended the guidelines to permit importation of shrimp from uncertified countries on a shipment-by-shipment basis. EII and TIRN sued again in 1998, but the Federal Circuit upheld the 1999 guidelines containing the amendment as reasonable.
Wilken accepted the government’s argument that the latest suit was sufficiently similar to the 1998 case that TIRN is bound by that result. TIRN appealed, and its case was argued in November at Stanford Law School, whose Environmental Law Clinic represented TIRN.
Chief Judge Alex Kozinski, writing for the Ninth Circuit Friday, agreed with the district judge.
“TIRN could have conveniently brought claims for NEPA and ESA violations when it filed its complaint...in 1998,” the chief judge wrote. The certification program was five years old at the time, and the department have never conducted EAs for certification decisions, Kozinski noted.
Kozinski’s Reasoning
TIRN’s contention that it was only challenging the 2009 certification decisions doesn’t hold water, the chief judge said, because the complaint’s allegations are not specific to any particular country or year.
“Following TIRN’s logic, there would be nothing stopping it from bringing a new general challenge to the certification process based on next year’s certification decisions, and every year from now on,” he wrote. “That’s exactly the kind of piecemeal litigation res judicata aims to prevent.”
He elaborated:
“While these two actions may be procedurally different, both arise from the government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting Adopting rules for certifying that countries meet the U.S. standards and actually making the certification decisions aren’t sufficiently different to defeat res judicata.”
He noted, however, that the ruling did not answer the substantive issues raised in the complaint, so another plaintiff “not in privity with TIRN” is free to sue.
Senior Judge Jerome Farris and District Judge Robert W. Gettleman of the Northern District of Illinois, sitting by designation, concurred.
The case is Turtle Island Restoration Network v. United States Department of State, 10-17059.
Copyright 2012, Metropolitan News Company