Earth Island Institute appeals the district court's dismissal for lack of jurisdiction of its lawsuit to enforce the provisions of section 609 of Public Law 101-162, 103 Stat. 1037, which is codified in 16 U.S.C. Sec. 1537 (Supp.1993). The purpose of the statute is to promote the international protection of sea turtles.

Sea turtles are often trapped in the nets used in commercial shrimp trawl fishing and are then vulnerable to drowning. In response to this problem, scientists in this country developed "turtle excluder devices," ("TED's") to prevent the accidental drowning of turtles. Federal regulations mandated the use of TED's in this country. See 52 Fed.Reg. 24,244 (June 29, 1987). The goal of section 609 is to encourage foreign shrimp trawlers to use similar methods to protect sea turtles.1

The statute has two subsections. Subsection (a) requires the Secretary of State to initiate negotiations with foreign countries to develop treaties to protect sea turtles, and to report to Congress about such negotiations. Subsection (b) requires limitations on the importation of shrimp from nations that have not moved to protect sea turtles. If the President certifies that a country has undertaken measures to protect turtles, shrimp imports from that country are not banned.

In this case, Earth Island Institute and Todd Steiner sought enforcement of the statute in the district court. Earth Island Institute is a non-profit corporation devoted to the conservation of the world's marine and terrestrial ecosystems. It established a Sea Turtle Restoration Project in 1989, in order to protect endangered species of sea turtles. Appellant Todd Steiner is the director of the Sea Turtle Restoration Project. Earth Island and Steiner brought suit against the Secretary of State, the Secretary of Commerce, the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs, and the Assistant Administrator of the National Marine Fisheries Service.

Plaintiffs alleged that defendants did not properly certify that foreign nations have regulatory programs that comply with the Act, as required by section 609(b). Plaintiffs alleged further that defendants had not banned the importation of shrimp and shrimp products from nations whose fishing technologies continue to harm sea turtles. Plaintiffs also alleged that defendants did not initiate treaty negotiations with foreign governments to protect sea turtles, as required by section 609(a) of the Act.

The district court ruled that it did not have jurisdiction over the section 609(b) claims because those claims involved "embargoes" or "quantitative restrictions" on the importation of products into the United States. Such matters fall within the exclusive jurisdiction of the United States Court of International Trade ("CIT"), under 28 U.S.C. Secs. 1581(i)(3) and (4). The district court ruled that it could not adjudicate the section 609(a) claims because it lacked subject matter jurisdiction: "The claims raise issues relating to the foreign affairs function, which rests within the exclusive province of the Executive Branch."

We affirm because we conclude that exclusive jurisdiction lies with the CIT on the section 609(b) claim, and that section 609(a) violates the separation of powers.Section 609(b)--District Court or Court of International

Trade Jurisdiction?

The CIT was created in the Customs Courts Act of 1980, as the successor to the Customs Court. Pub.L. No. 96-417, 94 Stat. 1727 (1980). The CIT is a court of the United States for all purposes of Title 28. 28 U.S.C. Sec. 451. Under the 1980 Act, the CIT retains the jurisdiction of the prior Customs Court, which had exclusive jurisdiction over a wide range of trade matters. Section 1581(i) of the 1980 Act also expanded the jurisdiction of the CIT beyond that of the earlier Customs Court.2 In this case, the district court ruled that the CIT had exclusive jurisdiction under Sec. 1581(i)(3), which gives the CIT exclusive jurisdiction over "embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety." The Supreme Court has addressed the scope of the jurisdiction of the CIT under Sec. 1581(i) in K Mart Corp. v. Cartier, Inc., 485 U.S. 176, 108 S. Ct. 950, 99 L. Ed. 2d 151 (1988). We hold that under K Mart, the CIT has exclusive jurisdiction over this lawsuit.

In K Mart, the Coalition to Preserve the Integrity of American Trademarks, a private association of United States trademark owners, filed a lawsuit in federal district court to challenge a regulation by the Secretary of the Treasury that permitted the importation of gray-market goods. Gray-market goods are foreign-manufactured goods bearing a U.S. trademark that are imported without the consent of the trademark owner. Plaintiffs sought a declaration that the regulation, which allowed exceptions to the ban on gray-market imports, was invalid. Plaintiffs also sought an injunction against enforcement of the regulation under section 526 of the Tariff Act, 19 U.S.C. Sec. 1526. The defendants argued that the CIT had exclusive jurisdiction over the lawsuit. The district court retained jurisdiction, and the D.C. Circuit affirmed. Coalition to Preserve the Integrity of American Trademarks v. United States, 790 F.2d 903, 907 (D.C.Cir.1986). The Supreme Court agreed that the CIT did not have jurisdiction over the case, because there was no "embargo" within the meaning of Sec. 1581(i)(3).

Appellants make two arguments under K Mart. First, they argue that the CIT does not have jurisdiction because the ban on shrimp imports is an environmental and not a trade matter, and as such is beyond the CIT's expertise. Second, they argue that the ban is not an "embargo" under the Supreme Court's definition of embargo in K Mart.

However, appellants misinterpret K Mart on both counts. In K Mart, the Supreme Court rejected the D.C. Circuit's reasoning that Sec. 1581(i)(3) refers only to embargoes arising out of trade policy. The Court gave an expansive interpretation of the scope of CIT jurisdiction by ruling that under Sec. 1581(i) "trade policy is not the sole, nor perhaps even the primary, purpose served by embargoes." K Mart, 485 U.S. at 184, 108 S.Ct. at 956. The Supreme Court reasoned that embargoes are imposed for a broad range of purposes, including public health, safety, morality, foreign affairs interests, law enforcement, and ecology. The Court expressly cited a regulation that prohibits the importation of sea otters as an example of an embargo in the field of ecology, over which the CIT would have exclusive jurisdiction. 19 C.F.R. Sec. 12.60 (1987).3

The similarity between that ban on sea otters, and the ban on shrimp products in this case, undermines appellants' argument that the subject matter of this lawsuit is beyond the expertise of the CIT. The prohibitions on shrimp importation for environmental protection in this case clearly fall within the range of CIT jurisdiction identified by the Supreme Court in K Mart.

Second, appellants' argument that the ban on shrimp imports is not an embargo also fails. Appellants describe the ban on shrimp products as an import restriction, or as a condition precedent to the importation of shrimp products, and therefore not an embargo within the meaning of section 1581(i)(3). However, they misinterpret K Mart's definition of embargo. The Supreme Court ruled that there was no embargo in K Mart because there was no governmental ban on importation. Instead, private parties sought to enforce a private right with governmental assistance. The trademark owners asked the United States to impose a ban on foreign-manufactured goods. Those private parties were "enlist[ing] the Government's aid in restricting the quantity of imports in order to enforce a private right." Id. at 185, 108 S.Ct. at 957. Thus, there was no "embargo."

By contrast, here there is clearly a governmental ban that meets the K Mart definition of embargo: "The ordinary meaning of 'embargo,' and the meaning that Congress apparently adopted in the statutory language 'embargoes or other quantitative restrictions,' is a governmentally imposed quantitative restriction--of zero--on the importation of merchandise." Id. This ban on the importation of shrimp products does not arise from the action of private parties, but is clearly a governmental embargo within the meaning of K Mart.

The other authority cited by appellants does not compel a different outcome. Sneaker Circus, Inc. v. Carter, 566 F.2d 396 (2d Cir.1977), was decided before Sec. 1581(i) expanded the jurisdiction of the CIT. Moreover, in Sneaker Circus, the Second Circuit ruled that the district court had jurisdiction to hear plaintiffs' challenge to U.S. trade agreements with foreign nations because the dispute would never be ripe for adjudication in the Customs Court. It based this belief on the assumption that the effective enforcement of the trade agreements abroad would obviate the need for parties to file administrative protests in the Customs Court. These conditions are not present in this appeal.

We are bound instead by our opinion in Cornet Stores v. Morton, 632 F.2d 96 (9th Cir.1980), cert. denied, 451 U.S. 937, 101 S. Ct. 2016, 68 L. Ed. 2d 324 (1981), in which we recognized the Customs Court's exclusive jurisdiction over a lawsuit challenging an import duty surcharge imposed under the Trading With the Enemy Act, 50 U.S.C.App. Sec. 5(b). In Cornet Stores, we noted that conflicts between exclusive Customs Court jurisdiction and the broad jurisdiction of the district courts should be " 'resolved by upholding the exclusivity of the Customs Court jurisdiction.' " Id. at 98 (quoting Fritz v. United States, 535 F.2d 1192, 1194 (9th Cir.1976)). We must uphold that exclusivity here.

The district court correctly ruled that the section 609(a) claims relate to "the foreign affairs function, which rests within the exclusive province of the Executive Branch under Article II, section 2 of the United States Constitution." The statute's requirement that the Executive initiate discussions with foreign nations violates the separation of powers, and this court cannot enforce it.

The Constitution commits the power to make treaties to the President: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." U.S. Const. Art. II, Sec. 2, cl. 2. The President alone has the authority to negotiate treaties with foreign countries. "Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it." United States v. Curtiss-Wright Corp., 299 U.S. 304, 319, 57 S. Ct. 216, 220, 81 L. Ed. 255 (1936); see alsoJensen v. Nat'l Marine Fisheries Serv., 512 F.2d 1189, 1191 (9th Cir.1975) ("presidential action in the field of foreign affairs is committed to presidential discretion by law").

Appellants argue that their lawsuit merely asks the district court to review and to interpret congressional legislation, a task that properly falls to the judiciary. They ask us to apply "the traditional rules of statutory construction ... to the particular set of facts" of this case, and to rule that the Executive has not complied with the terms of section 609(a). SeeJapan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230, 106 S. Ct. 2860, 2866, 92 L. Ed. 2d 166 (1986). They argue that district courts possess jurisdiction over a range of topics that impinge upon foreign relations without violating the separation of powers. Appellants rely on our decision in Hopson v. Kreps, 622 F.2d 1375 (9th Cir.1980), and the Second Circuit's decision in Sneaker Circus, supra.

However, in those cases, the district courts were not enforcing a statute that directed the executive to negotiate with foreign countries. In Hopson, we took jurisdiction to review the validity of regulations issued by the Department of Commerce under the International Whaling Convention Act of 1949, 16 U.S.C. Secs. 916-916l. Hopson, 622 F.2d at 1376. We held that whether the Executive had the authority under an International Whaling Convention to promulgate certain regulations was a justiciable issue, and was not rendered non-justiciable simply because the answer required the interpretation of a treaty. We were asked to interpret the law, not to enforce a statute directing the conduct of foreign relations. In Sneaker Circus, the Second Circuit held that there was federal court jurisdiction to determine if trade agreements had been negotiated in compliance with the procedural requirements of the Trade Act. Sneaker Circus, 566 F.2d at 398. The court stressed that the challenge was to the "procedures employed by the Executive" and not the "substance of trade agreements." Id. at 402.

Likewise, in Japan Whaling, the Supreme Court took jurisdiction over an appeal involving the interpretation of a statute that directed the Secretary of Commerce to certify to the President the names of those countries undermining international fishing conservation agreements. The challenge to the Secretary's decision not to certify Japan for its harvesting of whales presented a "purely legal question of statutory interpretation." Japan Whaling, 478 U.S. at 230, 106 S.Ct. at 2866. The statute did not direct the President to take any particular action upon receiving such certification.

In all three cases above, the courts performed their traditional task of statutory interpretation. Although the statutes touched on foreign affairs, they did not direct the actual conduct of foreign relations. SeeJapan Whaling, 478 U.S. at 229-30, 106 S.Ct. at 2865-66 ("it is 'error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance' ") (quoting Baker v. Carr, 369 U.S. 186, 211, 82 S. Ct. 691, 707, 7 L. Ed. 2d 663 (1969)). By contrast, section 609(a) intrudes upon the conduct of foreign relations by the Executive. Unlike the statutes discussed above, section 609(a) orders the Executive to negotiate and enter into treaties with foreign nations. This court has not and cannot lawfully order the Executive to comply with the terms of a statute that impinges upon power exclusively granted to the Executive Branch under the Constitution. Plaintiffs here ask us to compel the Secretary of State to initiate negotiations with foreign nations on the protection of sea turtles. Because "the Constitution plainly grants the President the initiative in matters directly involved in the conduct of diplomatic" affairs, we cannot enforce the statute. Laurence H. Tribe, American Constitutional Law Sec. 4-4, at 219 (2d ed. 1988).

Plaintiffs' claim is not one that is justiciable in any federal court. There is thus no reason to engage in the kind of debate invited by the dissent over the proper interpretation of 28 U.S.C. Sec. 1581(i) (granting exclusive jurisdiction to the Court of International Trade over any cause of action that "arises out of any law of the United States providing for ... (3) embargoes ...") The dissent asserts that subsection "a" of section 609, relating to treaty negotiations, is part of the same "law" as subsection "b" relating to embargoes for purposes of section 1581. It asserts further that any complaint containing one cause of action relating to an embargo must be heard in its entirety in the CIT, regardless of how many unrelated other causes of action may be alleged in that complaint. We believe this position is not only unsound, but ignores the more fundamental point: subsection (b) deals with a subject within the exclusive jurisdiction of the CIT, while subsection (a) deals with a subject outside the jurisdiction of any federal court. We therefore affirm the judgment of the district court dismissing the complaint.

AFFIRMED.

I concur in part 1 of the majority's opinion, dealing with appellants' challenge under section 609(b). I agree that section 609(b) provides for an "embargo or other quantitative restriction" on trade, and that the Court of International Trade has exclusive jurisdiction pursuant to 28 U.S.C. Sec. 1518(i).

I cannot agree with the majority's treatment of the 609(a) claim, however, because I believe we lack jurisdiction over that claim as well.

28 U.S.C. Sec. 1518(i) provides, in relevant part:

[T]he Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for-- ... (3) embargoes or other quantitative restrictions....

(Emphasis added). In my view, the import of this provision is clear: any action against the government commenced under section 609 must be maintained in the CIT. Because that court has exclusive jurisdiction, we have none at all. We cannot pass on the validity, constitutional or otherwise, of section 609(a) in this case.

I do not believe we are free to parse apart the statute to address the one subsection which does not at its core meet the CIT criteria. Even though the 609(a) claim does not itself seek an embargo or other quantitative restriction, it cannot be disputed that it "arises out of a law (Sec. 609) providing for embargoes or other quantitative restrictions." Part 1 of the opinion expressly recognizes that section 609 is such a provision.

The majority apparently has concluded that Sec. 609(b) is a "law of the United States providing for ... embargoes," but that subsection (a) of that same provision is an entirely separate "law of the United States" which does not. I disagree with that conclusion.

I fail to see how the statute could have been phrased more explicitly. It directs to the CIT "any civil action commenced against the United States ... that arises out of any law of the United States providing for ... embargoes or other quantitative restrictions" (emphasis added). That definition covers this case. If Congress intended Sec. 1581(i) to mean "any action against the United States challenging or supporting an embargo or other quantitative restriction," it easily could have said so. But it did not.

In Vivitar Corp. v. United States, 585 F. Supp. 1419 (1984), the Court of International Trade determined that it retained exclusive jurisdiction over the plaintiff's claim. Id. at 1426-27. The Federal Circuit Affirmed. 761 F.2d 1552 (Fed.Cir.1985), cert. denied, 474 U.S. 1055, 106 S. Ct. 791, 88 L. Ed. 2d 769 (1986). In that case, Vivitar complained "that Customs Service's administration and enforcement of Sec. 1526(a) and (b) is improper." 761 F.2d at 1558. That section provided in part:

(a) Importation prohibited

Except as provided in subsection (d) of this section, it shall be unlawful to import into the United States any merchandise of foreign manufacture [without written consent of domestic trademark owner].

(b) Seizure and forfeiture

Any such merchandise imported into the United States in violation of the provisions of this section shall be subject to seizure and forfeiture for violation of the customs laws.

Id. at 1571, appendix. The CIT determined it had jurisdiction over plaintiff's cause of action pursuant to Sec. 1581(i)(3) because Sec. 1526(a) provided a statutory limit on importation quantity, and satisfied the "quantitative restrictions" prong of Sec. 1581(i)(3). 585 F. Supp. at 1426.1 Just as in this case, one subsection provided the "embargo provision" (Sec. 1526(a)), but the other did not. Section 1526(b) only set out what could happen to the goods if imported in violation of the "quantitative restriction" (of zero) contained in subsection (a). The important point is that the CIT looked only to Sec. 1526(a) to find the embargo or quantitative restriction which would support Sec. 1581(i)(3) jurisdiction. It did not examine the subsection (b) forfeiture provision to see whether it, too, satisfied Sec. 1581(i)(3).2 Just as the CIT, and in affirmance the Federal Circuit, viewed Sec. 1526 as a single "law of the United States" providing for an embargo, so should we view Sec. 609 in this case. SeeVivitar, 761 F.2d at 1558-59.

This common-sense reading of Sec. 1581 effectuates precisely the result Congress directed in enacting that section in 1980. As set forth in the Senate Report to the statute:

Because the statutes defining the jurisdiction of the Customs Court (predecessor to the CIT) are so intricate and because international trade problems have become so complex, it has become increasingly more difficult to determine, in advance, whether or not a particular case falls within the exclusive jurisdiction of the Customs Court and is therefore excluded from the jurisdiction of the district courts. The result has been demonstrated by the fact that a significant number of civil actions have been initiated in the district courts only to be dismissed for lack of jurisdiction....

The amended bill attempts to solve this problem by clarifying the existing jurisdictional statutes relating to the United States Customs Court and by expanding the jurisdiction of the Court to include any civil actions involving imports and a statute, constitutional provision, treaty, executive agreement or executive order which is directly and substantially concerned with international trade.

American Ass'n of Exporters & Importers v. United States, 751 F.2d 1239, 1245 (Fed Cir.1985), quoting S.Rep. No. 466, 96th Cong., at 4-5 (emphasis added in 751 F.2d). Congress plainly intended to expand the jurisdiction of the CIT to include "any civil actions involving imports and a statute." Nowhere in the text of 28 U.S.C. Sec. 1581(i) or in its supporting legislative history have I found any indication that the section confers jurisdiction only over discrete claims explicitly invoking or challenging an embargo. See generally, H.R.Rep. No. 96-1235, 96th Cong., 2d Sess., reprinted in 1980 U.S.C.C.A.N. 3729-3786. The majority's conclusion that Sec. 1581(i) is so limited is unsupported, and unsupportable.

I read Sec. 1581(i) as conferring to the CIT jurisdiction over whole civil actions, not just particular claims. The statute says so unambiguously. Only by applying the statute as it is written will this congressional mandate be carried out.

Finally, the majority has unwittingly erected a massive barrier to future parties, like Earth Island, who seek to challenge in this circuit government action under one of the many protective provisions similar to Sec. 609. After today, a plaintiff must dissect his challenge, even before it is brought, so that any claim directly challenging, or seeking enforcement of the applicable embargo provision can proceed in the Court of International Trade. Any other claim, which is not pointed directly toward the embargo provision, must be brought in a separate action in the district court.

The case before us today illustrates perfectly why this rule is unworkable: An action challenging or seeking enforcement of a particular regulatory scheme simply cannot be neatly separated into embargo-related and non-embargo-related parts. The very text of sections Sec. 609(a) and (b), for example, reveals that the two sections are tied together. In Sec. 609(a), the Secretaries of State and Commerce are directed to initiate negotiations for agreements to protect and conserve sea turtles (Sec. 609(a)(1)); to negotiate agreements with foreign governments that engage in commercial fishing operations which may adversely affect the sea turtle in order to protect the turtles (Sec. 609(a)(2)); and to make treaties for the protection and preservation of the species (Sec. 609(a)(4)). By November 21, 1989, the Secretaries are to give Congress a list of nations conducting commercial fishing operations within the regions inhabited by the turtles; designate which nations will adversely affect this species; and set forth the status of measures taken by each nation to protect and conserve the sea turtles (Sec. 609(a)(5)(A), (B), (C)).

The directive of Sec. 609(a) was to be accomplished before the embargo date of May 1, 1991, set forth in Sec. 609(b)(1). It is obvious that the embargo cannot be put in place without the data to be developed by

the Secretaries under Sec. 609(a). The

status report requirement contained in Sec. 609(a)(5)(C)ii is a necessary predicate to determining the exceptions to the embargo under Sec. 609(b)(2)(A), (B) and (C). The two sections are interdependent.

It is clear to me that it is within the CIT's jurisdiction to decide whether there is a separation of powers question as to Sec. 609(b). The statute challenged describes a single preservation/embargo scheme. I do not see how we can fail to execute the clear directive Congress provided in Sec. 1581(i)(3).

Because section 609 as a whole is a "law providing for embargoes or other quantitative restrictions," both the claims under 609(a) and 609(b) arise out of it, and both claims lie within the exclusive jurisdiction of the CIT. This court is therefore without jurisdiction and is powerless to rule on the constitutionality of 609(a) at this time.

I would dismiss both claims for want of jurisdiction.