U.S. Wins Shrimp-Turtle Suit Allowing Shipments

Alice Thurston
Attorney Alice Thurston helped win the government's case on appeal in March.

A years-long battle over a U.S. law originally designed to prevent the importation of shrimp caught with technologies that might harm endangered sea turtles was brought to a halt in March when the Department of Justice successfully defended the U.S. State Department and other cabinet co-defendants against environmental groups in the U.S. Court of Appeals for the Federal Circuit. As part of the Appellate Section of the Environmental and Natural Resources Division of the Department of Justice, attorney Alice Thurston helped craft the United States' case on appeal. Thurston spoke during an Environmental Law Forum discussion April 8 at the Law School.

"Although I normally handle domestic endangered species and Native American law cases, this case was different and important because of its international implications," Thurston said.

The appeal was the latest stop in a lengthy dispute over a federal law regarding shrimping, called "section 609," of a 1990 appropriations act. Thurston said the lawsuit had its genesis in the late 1980s, when the U.S. began requiring Caribbean shrimpers to use turtle excluder devices, or TEDs, to protect endangered sea turtles. Unlike fish, turtles need to surface for air; shrimpers' trawl nets were drowning them. The TEDs, which proved to be highly effective, are shaped like a grid and are placed part-way through the windsock-shaped trawl nets. The grid lets shrimp through but deflects turtles out through a hole in the side of the net. "They're extremely effective in preventing turtle mortality," Thurston said.

Now applied to imported shrimp as well, the law and the State Department's regulations have faced various challenges in the Court of International Trade (CIT) from environmental groups and in the WTO from India, Pakistan, Malaysia, and Thailand, who charged that the guidelines gave Carribbean shrimpers more time to conform to U.S. guidelines and that the U.S. would not acknowledge technologies other than TEDs. The WTO Appellate Body ruled against the U.S. in 1998, but subsequently ruled that the United States' interpretation of section 609 was in agreement with GATT.

The question in the latest lawsuit revolved around whether section 609 allowed shipment-by-shipment imports of shrimp caught by TEDs, or if the nation from which the shrimp were coming had to certify that all shrimpers in their country were using TEDs. Thurston said the U.S. wanted to allow any shipments of shrimp that were caught using TEDs to be imported. In previous suits filed in the CIT, the environmental group Earth Island Institute (now Turtle Island Restoration Network) argued that no nation should be allowed to export TED-caught shrimp unless all the shrimping boats in the nation were using TEDs, an argument that environmentalists repeated in the current suit. The CIT decision was struck down by the Federal Circuit.

Thurston said Turtle Island argued that since not all boats are required to have TEDs to export shrimp, the incentive to adopt TEDs nationwide won't exist. Thurston noted, however, that all but two nations that export shrimp to the U.S. are now certified. Thurston said the plain language of the law and the past intent of Congress helped support her case in the most recent appeal, and she called the ruling "a good decision." But because one of the three judges in the panel had a strong dissent, Turtle Island may choose to request further review by the court.

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