Review of Agency Inaction Under the apa

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Saving the Whales: Judicial Review of Agency Inaction Under the APA
“Here, now, are two great whales laying their heads together; let us join them, and lay together our own.”
Herman Melville, Moby Dick (1851)

Japanese Whaling Association v. American Cetacean Society

Norton v. Southern Utah Wilderness Alliance

APA §§ 701 & 706

Notes and Questions:
1. In the last several assignments, we have considered the topic of judicial review of agency decisionmaking, with a focus on the principles of judicial deference to agency decisions on matters of fact and policy. This assignment adds two related questions of federal administrative law: First, to what extent is agency inaction within the discretion of the agency? Second, under what circumstances may an agency decline to regulate, or to take enforcement action, for political or diplomatic reasons?
2. What is the holding of Japanese Whaling? Do you agree with the Court that the governing legislation—the “Pelly Amendment” to the Fishermen’s Protective Act of 1967 and the “Packwood Amendment” to the Magnuson Fishery Convention and Management Act—is not sufficiently precise on the question of the Secretary of Commerce’s obligation to certify that foreign nations are not in compliance with the IWC whaling quotas to authorize the judiciary to compel the Secretary to act? How could Congress rewrite the law to reverse the Secretary's and the Court's interpretation of the statutes?
3. Are you persuaded by the Court’s interpretation of the legislative history of the Pelly and Packwood Amendments? Does the Court adequately respond to the legislative history on which Justice Marshall relies in his dissenting opinion? Is there a cumulative weight to what the Court terms mere “scattered statements hinting at the per se rule advocated by respondents”? We will study the Supreme Court’s use of legislative history, and Justice Scalia’s criticisms of judicial reliance on legislative history, in an upcoming assignment.
4. Several other aspects of the Supreme Court’s opinion in Japanese Whaling are worth noting. For example, what is the “political question” doctrine? Should the federal courts have jurisdiction to review agency decisions that implicate the United States' relations with foreign governments?
In Part II of his opinion of the Court, Justice White rejects the United States’s contention that the plaintiffs’ claims are not appropriate for judicial resolution:
[T]he courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts. It is also evident that the challenge to the Secretary's decision not to certify Japan for harvesting whales in excess of IWC quotas presents a purely legal question of statutory interpretation. The Court must first determine the nature and scope of the duty imposed upon the Secretary by the Amendments, a decision which calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular set of facts presented below. We are cognizant of the interplay between these Amendments and the conduct of this Nation's foreign relations, and we recognize the premier role which both Congress and the Executive play in this field. But under the Constitution, one of the Judiciary's characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.
The same question arose in Massachusetts v. EPA, 549 U.S. 497 (2007), where the Government argued that the political question doctrine required the courts to abstain from adjudicating claims involving global warming and climate change, because courts’ decision could interfere with the United States’s strategy in on-going negotiations to set international limits on greenhouse gas emissions. The Supreme Court curtly rejected this argument, essentially for the same reason given in Japanese Whaling: “The parties' dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. See 42 U.S.C. § 7607(b)(1).”
Do you agree with the Court’s conclusion that the political question doctrine is not applicable to these types of cases, despite the diplomatic implications of judicial intervention?
5. Could the plaintiff’s have sued President Reagan to compel him to enforce the sanctions set forth in the Packwood Amendment against Japan? In Franklin v. Massachusetts, 505 U.S. 788 (1992), and Dalton v. Specter, 511 U.S. 462 (1994), the Supreme Court held that the President may not be sued under the Administrative Procedure Act because the President is not an “agency” as defined in APA § 551(1).
The plaintiffs in Franklin brought suit under the APA challenging the the 1990 census in Massachusetts, which lost one seat in the House of Representatives because of a loss of population relative to other states. The Census Act requires the Secretary of Commerce to submit a census report to the President, who then certifies to Congress the number of Representatives to which each State is entitled pursuant to a statutory formula. The Supreme Court ruled that the Secretary’s decision was not subject to judicial review because it was not final agency action under APA § 704. Although the President’s certification of each state’s representation in the House based on the census report is final action, it is not reviewable because the President is not an “agency.” The Court reasoned that because “the final action complained of is that of the President, and the President is not an agency within the meaning of the Act. Accordingly, there is no final agency action that may be reviewed under the APA standards.”
In Dalton, the Court applied a similar analysis to the Secretary of Defense’s decision to close the Philadelphia Naval Shipyard. Under the Defense Base Closure and Realignment Act of 1990, the Defense Base Closure and Realignment Commission compiled a list of military bases that it believed should be closed. The statute then directed the President to accept or to reject the base closure list in its entirety. In a challenge to the Secretary’s authority to close the Philadelphia Naval Shipyard, the Court ruled that the Secretary had no discretion to keep the shipyard open because the Commission and the President had included it on the list of military bases to be closed: “What is crucial is the fact that ‘the President, not the [Commission], takes the final action that affects’ the military installations. Accordingly, we hold that the decisions made pursuant to the 1990 Act are not reviewable under the APA.”
6. In footnote 3 of its opinion in Japanese Whaling, the Court concludes (with no analysis) that the plaintiffs have standing to sue to challenge the Secretary’s implementation of the Pelly and Packwood Amendments. Do you agree that the plaintiffs satisfied the injury-in-fact, causation, and redressability requirements? Are they within the “zone of interests” protected by the Pelly and Packwood Amendments?
7. The Court also states in footnote 3 that a "separate indication of congressional intent to make agency action reviewable under the APA is not necessary; instead, the rule is that the cause of action for review of such action is available absent some clear and convincing evidence of legislative intention to preclude review." Because "the Secretary . . . failed to point to any expressed intention on the part of Congress to foreclose APA review of actions under either Amendment," the plaintiffs consequently "are entitled to pursue their claims under the right of action created by the APA."
This is an important principle of administrative law. Under the APA, there is a presumption that the courts have jurisdiction to review agency action. The only exceptions are those stated in section 701(a): (1) where another statute "preclude[s] judicial review"; and (2) where "agency action is committed to agency discretion by law."
The Supreme Court has narrowly interpreted each exception. For the first exception to apply, the statute must explicitly prohibit judicial review or there must be "clear and convincing evidence" in the legislative history of congressional intent "to restrict access to judicial review." Block v. Community Nutrition Institute, 467 U.S. 340, 345 (1984); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967). The second exception applies only where the statute under which the agency is acting is "'drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.'" Lincoln v. Vigil, 508 U.S. 182, 191 (1993). This is a slight reformulation of the Overton Park principle that there is judicial review of agency action under the APA unless the statute is "'drawn in such broad terms that in a given case there is no law to apply.'" Overton Park, 401 U.S. at 410 (quoting S. Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)).
8. Although statutes that expressly prohibit judicial review of agency decisions are rare, Congress has employed this strategy in several prominent environmental controversies.
In the Department of the Interior and Related Agencies Appropriations Act of 1990, 103 Stat 745 (1990), for example, Congress authorized the cutting of timber in areas of designated habitat for the endangered Northern Spotted Owl despite the directives of NEPA, the National Forest Management Act (“NFMA”), the Federal Land Policy and Management Act (“FLPMA”), and two other statutes. The statute applied to all timber sales for fiscal years 1989 and 1990 in national forests and BLM lands in Washington and Oregon that “are known to contain northern spotted owls.” Section 318(b)(6)(A) of the Act then provided:
Without passing on the legal and factual adequacy of the Final Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide—Spotted Owl Guidelines and the accompanying Record of Decision issued by the Forest Service on December 8, 1988 or the December 22, 1987 agreement between the Bureau of Land Management and the Oregon Department of Fish and Wildlife for management of the Spotted Owl, the Congress hereby determines and directs that management of areas according to [the provisions of this Act] on the thirteen national forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR. The guidelines adopted by [this Act] shall not be subject to judicial review by any court of the United States.
Environmentalists involved in the effort to protect the Northern Spotted Owl and other species in the Pacific Northwest forests sued, claiming that the Act directed the courts how to decide pending cases challenging timber sales in owl habitat and therefore was an unconstitutional violation of the doctrine of separation of powers. In Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992), the Supreme Court disagreed, holding that that section 318(b)(6)(A) simply suspended the requirements of the various environmental laws and was not an attempt by Congress directly to intercede in the Seattle Audubon Society and Portland Audubon Society cases. Writing for a unanimous Court, Justice Thomas explained:
We conclude that subsection (b)(6)(A) compelled changes in law, not findings or results under old law. Before subsection (b)(6)(A) was enacted, the original claims would fail only if the challenged harvesting violated none of five old [statutory] provisions. Under subsection (b)(6)(A), by contrast, those same claims would fail if the harvesting violated neither of two new provisions. Its operation, we think, modified the old provisions. Moreover, we find nothing in subsection (b)(6)(A) that purported to direct any particular findings of fact or applications of law, old or new, to fact.
* * *
The reference to Seattle Audubon and Portland Audubon * * * served only to identify the five “statutory requirements that are the basis for” those cases-namely, pertinent provisions of [the environmental statutes]. Subsection (b)(6)(A) named two pending cases in order to identify five statutory provisions. To the extent that subsection (b)(6)(A) affected the adjudication of the cases, it did so by effectively modifying the provisions at issue in those cases.
Several years later, Congress enacted a “Salvage Timber Rider” to the Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act, Pub. L. No. 104-19, 109 Stat. 240, 240-48, § 2001 (1995). The purpose of the rider was to authorize harvesting of timber in areas covered by the 1994 Northwest Forest Plan, which the Clinton Administration had negotiated with the states of Oregon, Washington, California and the timber industry and its unions. Section 2001(d) of the Act applied specifically to timber sales in areas of critical habitat for the Northern Spotted Owl:
Notwithstanding any other law (including a law under the authority of which any judicial order may be outstanding on or after the date of enactment of this Act [July 27, 1995]), the Secretary concerned shall expeditiously prepare, offer, and award timber sale contracts on Federal lands described in the Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl,” signed by the Secretary of the Interior and the Secretary of Agriculture on April 13, 1994. The Secretary concerned may conduct timber sales under this subsection notwithstanding any decision, restraining order, or injunction issued by a United States court before the date of the enactment of this section. The issuance of any regulation pursuant to section 4(d) of the Endangered Species Act of 1973 (16 U.S.C. 1533(d)) to ease or reduce restrictions on non-Federal lands within the range of the northern spotted owl shall be deemed to satisfy the requirements of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)) [section 4332(2)(C) of Title 42], given the analysis included in the Final Supplemental Impact Statement on the Management of the Habitat for Late Successional and Old Growth Forest Related Species Within the Range of the Northern Spotted Owl, prepared by the Secretary of Agriculture and the Secretary of the Interior in 1994, which is, or may be, incorporated by reference in the administrative record of any such regulation. The issuance of any such regulation pursuant to section 4(d) of the Endangered Species Act of 1973 (16 U.S.C. 1533(d)) shall not require the preparation of an environmental impact statement under section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).
In sections 2001(f) and (i), Congress severely restricted judicial review of salvage timber sales contracts:

      • (1) PLACE AND TIME OF FILING. A salvage timber sale to be conducted under subsection (b), and a timber sale to be conducted under subsection (d), shall be subject to judicial review only in the United States district court for the district in which the affected Federal lands are located. Any challenge to such sale must be filed in such district court within 15 days after the date of initial advertisement of the challenged sale. The Secretary concerned may not agree to, and a court may not grant, a waiver of the requirements of this paragraph.

    • * * *

      • (4) STANDARD OF REVIEW.--The courts shall have authority to enjoin permanently, order modification of, or void an individual salvage timber sale if it is determined by a review of the record that the decision to prepare, advertise, offer, award, or operate such sale was arbitrary and capricious or otherwise not in accordance with applicable law (other than those laws specified in subsection (i)).

* * *
(i) EFFECT ON OTHER LAWS. The documents and procedures required by this section for the preparation, advertisement, offering, awarding, and operation of any salvage timber sale * * * under subsection (d) shall be deemed to satisfy the requirements of the following applicable Federal laws (and regulations implementing such laws):

      1. The Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. § 1600 et seq.).

      2. The Federal Land Policy and Management Act of 1976 (43 U.S.C. § 1701 et seq.).

      3. The National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq.).

      4. The Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.).

      5. The National Forest Management Act of 1976 (16 U.S.C. § 472a et seq.).

      6. The Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. § 528 et seq.).

      7. Any compact, executive agreement, convention, treaty, and international agreement, and implementing legislation related thereto.

      8. All other applicable Federal environmental and natural resource laws.

Relying on Seattle Audubon Society, the U.S. Court of Appeals for the Ninth Circuit upheld the Salvage Timber Rider in Northwest Forest Resource Council v. Pilchuck Audubon Society, 97 F.3d 1161 (9th Cir. 1996).
9. The issue of preclusion of judicial review also arose in the debate over the fiscal stimulus and bailout legislation that Congress enacted in October 2008. The first version of the legislation, which the Bush Administration sent to Congress on September 19, 2008, would have granted the Secretary of the Treasury almost unbridled authority to decide how and where to spend the $750 billion that the legislation allocated to loans and other financial relief for the banking, mortgage, insurance, and securities industries. The bill thus declared: “Decisions by the Secretary pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.”
A majority of both houses, led by the Democrats on this issue, objected to the exclusion of all judicial review. After much negotiation and the House of Representatives’ rejection of the next version of the legislation, Congress finally passed the Emergency Economic Stabilization Act, Pub. L. No. 110-343, on October 3rd. Section 113 of the Act provides:
(1) STANDARD—Actions by the Secretary pursuant to the authority of this Act shall be subject to chapter 7 of title 5, United States Code, including that such final actions shall be held unlawful and set aside if found to be arbitrary, capricious, an abuse of discretion, or not in accordance with law.

    1. INJUNCTION- No injunction or other form of equitable relief shall be issued against the Secretary for actions pursuant to section 101, 102, 106, and 109, other than to remedy a violation of the Constitution.

    2. TEMPORARY RESTRAINING ORDER- Any request for a temporary restraining order against the Secretary for actions pursuant to this Act shall be considered and granted or denied by the court within 3 days of the date of the request.

    3. PRELIMINARY INJUNCTION- Any request for a preliminary injunction against the Secretary for actions pursuant to this Act shall be considered and granted or denied by the court on an expedited basis consistent with the provisions of rule 65(b)(3) of the Federal Rules of Civil Procedure, or any successor thereto.

    4. PERMANENT INJUNCTION- Any request for a permanent injunction against the Secretary for actions pursuant to this Act shall be considered and granted or denied by the court on an expedited basis. Whenever possible, the court shall consolidate trial on the merits with any hearing on a request for a preliminary injunction, consistent with the provisions of rule 65(a)(2) of the Federal Rules of Civil Procedure, or any successor thereto.

10. A notable exception to the principle that Congress may limit or preclude judicial review as it deems appropriate is for the right of habeas corpus. The Supreme Court has held that neither Congress nor the President may suspend the privilege of the Great Writ except as authorized by Article I, Section 9 of the Constitution—viz. “when in Cases of Rebellion or invasions the public Safety may require it.” See Boumediene v. Bush, 553 U.S. 723 (2008).
11. Although Overton Park and subsequent decisions established a presumption in favor of judicial review, the Supreme Court has held that an agency's decision not to take enforcement action is presumptively nonreviewable.
In Heckler v. Chaney, 470 U.S. 821 (1985), opponents of the death penalty sued the Food and Drug Administration (“FDA”) under section 706(1) of the APA to compel the agency to declare the use of registered drugs for capital punishment by lethal injection to be an “unapproved use” under the Food, Drug, and Cosmetic Act. The Court ruled that the FDA's decision not to enforce the Act against Oklahoma and Louisiana state prison officials was “committed to agency discretion” under section 701(a)(2) of the APA.
Writing for an eight person majority, Justice Rehnquist began by distinguishing Overton Park and proceeded to a policy explanation for the Court's interpretation of the APA:
Overton Park did not involve an agency's refusal to take requested enforcement action. It involved an affirmative act of approval under a statute that set clear guidelines for determining when such approval should be given. Refusals to take enforcement steps generally involve precisely the opposite situation, and in that situation we think the presumption is that judicial review is not available. This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion. * * * This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.
The reasons for this general unsuitability are many. First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities. Similar concerns animate the principles of administrative law that courts generally will defer to an agency's construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 543 (1978); Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 87 (1975).
In addition to these administrative concerns, we note that when an agency refuses to act it generally does not exercise its coercive power over an individual's liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect. Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.
Finally, we recognize that an agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to "take Care that the Laws be faithfully executed." U.S. Const., Art. II, § 3.
We of course only list the above concerns to facilitate understanding of our conclusion that an agency's decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2). For good reasons, such a decision has traditionally been "committed to agency discretion," and we believe that the Congress enacting the APA did not intend to alter that tradition. * * * In so stating, we emphasize that the decision is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers. Thus, in establishing this presumption in the APA, Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. Congress may limit an agency's exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency's power to discriminate among issues or cases it will pursue. How to determine when Congress has done so is the question left open by Overton Park. [470 U.S. at 831-33]
12. Should the Court have based its decision in Japanese Whaling Association on sections 701(a)(2) and 706(1) of the APA as it did in Heckler v. Chaney? How persuasive is the Court's reasoning in Heckler? Are there significant legal differences between the two cases that would make the Heckler doctrine inapplicable to the Secretary's decision in Japanese Whaling Association?
13. Southern Utah Wilderness Alliance v. Norton (“SUWA”) is the most recent Supreme Court decision addressing the scope of judicial authority to compel agency action under APA § 706(1). What is the basis of the conclusion that the BLM’s alleged failure to protect the federal public lands in Southern Utah from off road vehicles is not reviewable under section 706(1)? Are the Court’s analysis and holding consistent with the standards set forth in Japanese Whaling and Heckler v. Chaney? Under what circumstances would BLM inaction be reviewable?
14. Do you agree with the Court’s application of the ejusdem generis canon of statutory interpretation to reach the conclusion that, under the APA, “a ‘failure to act’ is properly understood to be limited, as are the other items in § 551(13), to a discrete action”? What does this mean?
15. Is the Court’s decision consistent with FLPMA? Is this a consequence of Congress’ failure to include a “citizen suit” provision in the statute? How could Congress amend FLPMA to authorize judicial review of agency inaction in cases such as SUWA? Would such an amendment be appropriate?
16. Should the court apply different standards to claims that seek to compel federal agencies to regulate or to take enforcement action than they do in reviewing regulations and other agency actions?
17. Before we conclude this “saving the whales” assignment, it is worth noting that Japan’s compliance with international whaling protocols and its continuance of whaling itself remain in the news:
Mark McDonald, In Battle Against Whaling, Groups Split on Strategy

N.Y. Times, Nov. 23, 2009

Quietly, without the usual bon voyage fanfare and Buddhist blessings, a Japanese whaling ship set sail this week on its yearly hunt for the great whales of the Southern Ocean. If the hunting is good, the ship, Nisshin Maru, will haul in more than 1,000 whales. Meanwhile, at the Rivergate Marina in Brisbane, Australia, the Sea Shepherd Conservation Society is preparing its own ship, the Steve Irwin, for its annual oceangoing battle with the Japanese whaler.
Past confrontations have been dramatic, dangerous, even violent. There have been collisions and rammings, forced boardings, the fouling of propellers, the firing of stink bombs and stun grenades, even allegations of gunplay. Sea Shepherd, with a crew that includes the American actress Daryl Hannah, promises big surprises and new tactics for the Japanese fleet.
But the group whose members have been labeled eco-terrorists will not have any backup this year: For the first time in four years, Greenpeace is not sending a ship to help harass the whalers. Greenpeace has decided to concentrate on a court case in Japan involving two of its activists along with a campaign to turn Japanese opinion against whaling. The group has changed its tactics for a few reasons, Steve Shallhorn, chief executive officer of Greenpeace Australia-Pacific, said Friday from Sydney. For one, it has been “out-messaged by the Japanese Fisheries Agency,” he said. “They’ve been very skillful, using the message that Westerners can’t tell Japanese what they can and can’t eat.”
But Greenpeace is also distancing itself from the directly confrontational approach it once championed — and which Sea Shepherd remains committed to. “Their brand of militancy has generated a huge backlash in Japan,” Steve Shallhorn, chief executive officer of Greenpeace Australia-Pacific, said Friday from Sydney. “Japan is a society where confrontation is avoided and property damage is considered violence.”
The shift infuriates Paul Watson, the Sea Shepherd founder and the captain of the Steve Irwin. One of the original founders of Greenpeace in the early 1970s, he parted ways with the group in 1978 because he wanted it to be more aggressive. “I call them ‘the other whaling industry,” he said in a telephone interview Friday from Brisbane. “They’ve raised millions of dollars off the whales for this campaign—and now they’re not sending a boat. They should be ashamed.”
Mr. Watson, 57, is a Canadian who sports a bushy beard and flies a skull-and-crossbones flag on his ship. He says he was shot in the chest last year by a Japanese sailor who was on the whaling ship. Only a bulletproof vest saved his life, he said. His account could not be independently verified. Mr. Watson's ship is set to sail next weekend.
The International Whaling Commission, with 82 nations as members, banned commercial whaling in 1986. Some native and aboriginal groups are permitted to hunt whales for food; Norway and Iceland have since objected to the moratorium and continue to hunt whales. International law also allows whaling for scientific purposes, and Japan uses this codicil to license its deep-water whalers. They mostly hunt minke whales, but also fin whales, which are listed as endangered by the International Union for the Conservation of Nature.
“The Japanese have seized on that loophole,” Mr. Shallhorn said, “and stretched it beyond all recognition.” Still, he has become convinced that the annual face-off at sea only played into the hands of the whalers, who were able to build on the historical attachment some Japanese feel for the industry.
After World War II, with Japan on the verge of starvation and winter coming on, Gen. Douglas MacArthur requisitioned ships for whaling expeditions, and surveys show that the idea still resonates for some Japanese, especially older men. “They were encouraged to go whaling,” Mr. Shallhorn said. “For almost 10 years, whale meat was an important part of the Japanese diet, a lot of the protein in their diet.”
Still, he feels that Greenpeace might be able, over time, to shift opinions. Few Japanese eat whale meat on a regular basis, and he said, the group’s polling suggests that most Japanese “wouldn’t touch it with a 10-foot chopstick.”
Activists Pursue Japanese Whalers by Helicopter

N.Y. Times, Jan. 7, 2009

Japanese whalers and conservationists squared off Thursday for more hostilities in the Antarctic, a day after the hunters crushed one of the activists' boats in a clash each side blamed on the other but all agreed endangered lives. Sea Shepherd Conservation Society searched Antarctic waters by helicopter for a key Japanese whaling ship on Thursday, renewing its attempts to find and harass the whalers into giving up their hunt, the group's founder Paul Watson said.
The escalating Antarctic confrontations were broadly condemned, but no plan was immediately hatched to prevent future confrontations. Legal uncertainties about jurisdiction and the remoteness of the area make policing the international waters at the bottom of the world extremely difficult, experts say.
Japan kills about 1,200 whales a year in Antarctica under what it says is a scientific program allowed by the International Whaling Commission despite a broader moratorium on killing the mammals. Critics say the program is a front for illegal commercial whaling, and Sea Shepherd sends ships to Antarctica each season to try to stop the hunt -- an effort portrayed on the Animal Planet TV series ''Whale Wars.''
On Wednesday, the Japanese whaling ship Shonan Maru plowed into Sea Shepherd's Ady Gil, knocking the bow off the wave-piercing trimaran speedboat that is one of the group's trio of vessels trying to harass the hunters out of business. Australia and New Zealand, the closest nations to the latest confrontation, announced investigations Thursday into the crash.
The whaling is conducted in international waters, but usually within the huge patch of ocean that is designated as Australia's maritime rescue zone and that Canberra considers a whale sanctuary. But rules governing Antarctica are not clear cut. The frozen continent and the oceans around it are administered by agreement between nations, and there are conflicting claims about sovereignty.
''There is very little ability for a sort of police force to just turn up on the scene to separate the two sides'' when then is a dispute such as Wednesday's clash, said Don Rothwell, a professor in international law at the Australian National University who wrote a recent report for the government on Antarctic whaling. It was possible Sea Shepherd could try to sue the whaling ship's master for negligence in Wednesday's clash, he said. But the whalers could also try to have the Ady Gil charged with terrorism at sea for trying to foul its propellers with rope -- a tactic Sea Shepherd openly says it uses.
Japan said it had asked countries that let the conservationists register their ships or use their ports to help curtail the group's aggressive acts. Sea Shepherd leader Paul Watson said Australia should send its navy or a customs vessel to stop what he calls illegal poaching. But Wednesday's clash was unlikely to produce any useful change in policy, and had actually raised the chances of a further escalation in the whaling face-off, said Rothwell. ''This is the great fear at the moment,'' he said. ''Sea Shepherd is using very strong language, talking about a war with the Japanese,'' he said. ''Increasingly, the Japanese have become more aggressive in their responses—we can expect that there will be more clashes.''
Sea Shepherd says the Ady Gil was sitting idle and the whaler deliberately rammed it. Japan says the activists' boat was moving toward its ship and a miscalculation on their part caused the collision. Neither side's version—which happened near Commonwealth Bay about 1,500 miles (2,400 kilometers) south of Australia—could be independently verified. Two cracked ribs to a Sea Shepherd volunteer were the only injuries reported. ''I've never been so close to death in my life,'' Laurens de Groot, a 29-year-old Dutch member of the Ady Gil's crew who was not injured, told The Associated Press by satellite telephone on Thursday. ''While I was standing on the roof and that harpoon ship was coming in at full speed, you think: `This can't be real, it's not really happening.'''
Neither side showed signs Thursday of backing down. ''The series of sabotage acts by the Sea Shepherd were very dangerous and risked the life and safety of the Japanese crew members,'' Japanese Foreign Ministry spokesman Yasuhisa Kawamura told reporters in Tokyo.

Watson vowed his group would not step back, saying ''We now have a real whale war on our hands.'' He said a helicopter the group's main ship, Steve Irwin, was launched Thursday to try to find the Japanese fleet's whale processing ship and resume attempts to disrupt the whalers.

Meanwhile, crew were removing fuel, the boat's engines and other items from the Ady Gil, which was being attended to by the group's third vessel, the Bob Barker—named for the former U.S. ''Price is Right'' TV host who recently gave Sea Shepherd $5 million. Watson said he expected the Ady Gil to sink, though de Groot, the crewman, said plans were afoot to have it towed to Dumont d'Urville Station, a French scientific base, for salvage or repairs. ''Our priority right now (is) to make sure there is no pollution from that vessel,'' Watson told AP.
Acting Australian Prime Minister Julia Gillard said there were no immediate plans to send a government vessel to the region. She said Canberra's ability to act was hampered because Japan did not recognize Australia's jurisdiction in the region. ''This is an issue where emotions run high,'' Gillard told reporters. ''I am saying to everyone out in these dangerous and inhospitable waters that this is a time for calm judgments. We do not want to see people taking risks that result in a loss of life.''
Martin Fackler, With Whaling Ships Under Attack, Japan Will Recall Fleet

N.Y. Times, Feb. 18, 2011

Japan will cut short this year’s annual whale hunt in the Antarctic Ocean after obstruction by an environmental group largely prevented its ships from killing whales, the government said Friday. The Agriculture Ministry, which runs Japan’s widely criticized research whaling program, said harassment by the group, the Sea Shepherd Conservation Society, had kept its catch far below its annual target of whales. A spokesman for the ministry said on Friday that 170 minke whales and two fin whales had been caught this season, far below the annual targets of 850 minke and 50 fin.
The recall of Japan’s fleet is the first time that environmentalists have succeeded in cutting short the annual hunts, which Japan says are necessary for scientific research. Critics say the hunts are an effort to evade a global moratorium on commercial whaling.
Friday’s announcement was welcomed by Sea Shepherd, which is based in Washington State. In a statement on its Web site, the group said three of its ships would remain in the Southern Ocean to “escort” the Japanese fleet northward. In recent years, Sea Shepherd has sent ships to the Antarctic to block Japan’s whaling fleet, turning the hunts into a game of cat-and-mouse that has received increasing media attention. The environmentalists try to block the Japanese by tangling the ships’ propellers with ropes or putting their own vessels in between the whalers and their quarry.
The ministry said the group had harassed the Japanese ships by shining laser beams to temporarily blind crew members and throwing flares onto the whaling vessels. Agriculture Minister Michihiko Kano told reporters on Friday that the decision to recall the fleet was made to ensure the safety of the crews and ships. The ministry said its whaling fleet had often been able to simply outrun the environmentalists. It could not do so this year because Sea Shepherd had faster vessels, the government said.
Japanese newspapers reported that there had been resistance to cutting short the hunt for fear of appearing to cave in to pressure from foreign environmentalists. Domestic critics have called the program an anachronism, because private fishing companies have dropped out under international pressure and the demand for whale meat is declining. Few Japanese eat whale anymore, and the meat from the hunt has piled up in freezers, or been given to children for school lunches.
Hiroko Tabuchi, Japanese Subsidies Keep Whaling Industry Afloat, Report Says

New York Times, Feb. 7, 2013

A wildlife conservation group has said in a report that Japan has been propping up its whaling industry with nearly $400 million in tax money in recent years, stepping up subsidies even as the consumption of whale meat has slumped. The report, compiled by the International Fund for Animal Welfare, in Yarmouth Port, Massachusetts, and released Wednesday, challenges assertions by the Japanese government that whaling is a tradition with wide support among Japanese consumers. Instead, government figures tallied in the report paint a picture of a struggling industry employing fewer than 1,000 people and dependent on public handouts, which have included money meant for reconstruction after the earthquake and tsunami of March 2011.
Most Japanese consumers have turned away from whale meat. The industry shipped just 5,000 tons in 2011, compared with 233,000 tons at the peak in 1962, according to data from the Ministry of Agriculture, Forestry and Fisheries. Demand this year is so low that the industry has cut its planned shipments by half, to 2,400 tons. “Whaling is unprofitable and survives only with substantial subsidies, something cultural and nationalist arguments for whaling obscure,” said Patrick Ramage, the director of the animal welfare fund’s whale program. He said the country would be better off economically and ecologically if it promoted whale-watching tourism instead of hunting whales.
Japan’s Fisheries Agency declined to comment on the report, saying it had not yet studied its contents. But an official, speaking on the condition of anonymity, said there was “nothing wrong with these subsidies, which fund an important program,” though it was “not the government’s responsibility to make whaling economically viable.”
A world moratorium on commercial whaling took effect in 1986, but Japan has taken advantage of an exception allowing whaling for research purposes to continue hunting, though environmental activists who chase whaling boats have made those hunts increasingly difficult. Japan has captured and killed more than 14,000 whales since the moratorium began. The meat from the whales is sold as “byproducts” of research, and it makes its way to supermarkets, restaurants and even school lunches. A government Web site says the most popular whale dishes are fried whale, whale sashimi and medium-rare whale steak.
According to figures from the Institute of Cetacean Research, the nonprofit organization set up to run the whaling program, income from whale meat has failed to cover the costs of whaling for the past five years. So subsidies have been increased and some disaster aid has been diverted to the industry, prompting a public outcry.
The financial picture prompted the government to announce a plan last year to cut costs by reducing the annual catch and to sell more whale meat directly to schools for lunches. But experts doubt that those measures will make the whaling industry self-sufficient again. “The Japanese government has desperately defended whaling for years, but the question has increasingly become: for what?” said Yusuke Saskata, a professor of environmental economics at Kinki University in Osaka. “Supporting whaling culture is one thing, but maintaining whaling at this scale makes no sense.”
Didi Kirsten Tatlow, Environmentalists and Anti-Whalers: ‘Pirates,’ or Protectors?

International Herald Tribune, Feb. 28, 2013

The battle between Japan’s “whale researchers” and anti-whaling groups has long been a furious one, often fought, precariously, between vessels heaving in icy seas. But who here is the protector, who the pirate?
This week a federal judge in the United States ruled that Sea Shepherd, the anti-whaling group, was “pirate,” in a suit brought by the whale researchers, the Institute of Cetacean Research in Japan. (The institute, set up in 1987, a year after an international moratorium on whaling took effect to protect fast-dwindling species, says it is a “whale research program” but environmentalists say it is involved in commercial whaling and its Web site says it engages in “whaling.”)
“You don’t need a peg leg or an eye patch” to be a pirate, ruled Chief Judge Alex Kozinski of the 9th Circuit, in an opinion dated Feb. 25 in Seattle. . . . “When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be,” the judge ruled, finding in favor of the Institute, which he described as “ Japanese researchers who hunt whales in the Southern Ocean.” The judge defined a pirate as someone involved in acts of violence on the high seas and, importantly, driven by “private” ends.
Here’s how the United Nations Convention on the Law of the Sea defines piracy, as cited by the judge: “illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship … and directed … on the high seas, against another ship … or against persons or property on board such ship.” The argument is of course more complicated than that (legal judgments usually are) but it does seem to raise the following important question: can environmentalists, who are working to protect their surroundings, be considered to be motivated merely by “private” ends? Or is it a larger, “public” ends that drive them?
The judge said in his ruling the issue had not been much studied. “Belgian courts, perhaps the only ones to have previously considered the issue, have held that environmental activism qualifies as a private end,” he wrote.
Unsurprisingly, the verdict is roiling environmentalists, with Sea Shepherd’s founder, Paul Watson, saying: “They are entitled to their opinion, but the Australian Federal Court deemed the Japanese (whalers) to be pirates.”
The Ninth Circuit’s opinion is Institute of Cetacean Research v. Sea Shepherd Conservation Society, No. 12-35266 (9th Cir., filed Feb. 25, 2013).

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