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motion for reconsideration and on 25 June 1982, the 

 Government appealed the District Court's decision to 

 the U.S. Court of Appeals for the Ninth Circuit. On 

 8 June 1983, the appellate panel issued an order to 

 withdraw the case from submission, pending a decision 

 in the Balelo case discussed below. 



The second lawsuit ( Balelo v. Baldrige ) , filed 

 1 October 1980, was also brought by representatives of 

 the U.S. fishing fleet in the U.S. District Court for the 

 Southern District of California. This lawsuit challenged 

 the statutory and Constitutional authority for the 

 Government's use of information gathered by observers 

 on board tuna vessels for enforcement of the quotas and 

 other provisions of the regulations. On 27 July 1981, 

 the District Court ruled that, in the absence of statutory 

 authority, such use of observer-gathered information 

 violated the Marine Mammal Protection Act and the Fourth 

 Amendment of the U.S. Constitution. The court enjoined 

 the Government from using such information for civil or 

 criminal penalty proceedings, forfeiture actions, permit 

 or certificate sanctions, or any purpose except scientific 

 research. On 22 September 1981, the Government appealed 

 the District Court's decision to the U.S. Court of Appeals 

 for the Ninth Circuit. 



On 5 January 1983, a three- judge panel of the Court 

 of Appeals ruled that the regulation requiring tuna vessels 

 to accept observers was invalid for all purposes — 

 scientific data gathering as well as enforcement of quotas 

 and other regulations. The court affirmed the District 

 Court's July 1981 holding with respect to placement of 

 observers for enforcement, reversed the District Court's 

 holding that such placement for scientific purposes was 

 permissible, and remanded the case to the District Court 

 to enter an injunction consistent with the opinion banning 

 placement of observers without consent for any purposes. 

 The court reasoned that such placement of observers 

 without consent was a search without a warrant, raised 

 issues of "questionable constitutionality," and that 

 there was no express Congressional authorization for it in 

 the Act which might overcome such constitutional problems. 

 On 3 June 1983, the full U.S. Court of Appeals for the 

 Ninth Circuit granted the Government's motion for a 

 rehearing en banc (by the full court) and oral arguments 

 were presented to the court on 15 September 1983. On 

 appeal, the Ninth Circuit consolidated Balelo with a 

 companion case ( United States v. $50,178.50 ) (the "Willa G.' 

 case) , in which the Service had sought forfeiture of that 



