1374(d)(3). Although the ATA did estimate in its 1976 application that 85,060 incidental porpoise mortalities would occur during the 1976 fishing season, it failed even to discuss whether this number of killings would be to the disadvantage of the porpoise.
Section 1374(b)(2)(A) of the Act requires further that any permit issued by the agency specify "[the] number and kind of animals which are authorized to be taken or imported." See part I-A, supra. It cannot be contested that the 1976 general permit which the agency granted to defendant-intervenor ATA violated this explicit statutory command.
Even though it was given a projected porpoise mortality figure of 85,060, the agency decided, in contravention of the Act, to grant ATA an unrestricted general permit, without limitation as to number or kind.
Having established that the federal defendants violated specific requirements of the MMPA
and consistently misinterpreted the general mandate of the Act, the Court turns finally to the question of relief. As to declaratory relief, plaintiffs request this Court to issue a declaratory judgment that the current regulations providing for the incidental taking of porpoise by tuna fishermen, and the general permit issued pursuant thereto, are void as contrary to law. Having found that the defendants acted unlawfully and contrary to their duties under the MMPA, the Court will grant this request for declaratory relief.
As to injunctive relief, the prevailing parties urge the adoption of basically two alternative plans. Plaintiff Committee for Humane Legislation requests the Court to order an immediate ban on the incidental taking of marine mammals by commercial fishermen until such time as the agency has fully complied with the MMPA.
Plaintiff Environmental Defense Fund also urges that defendants be ordered to comply with the requirements of the Act, but proposes, in a "spirit of conciliation," a quota rather than an injunction until such compliance is achieved; under the terms of this proposed quota the 1975 porpoise mortality figure of 130,000 would be cut by half each succeeding year, thus limiting the incidental porpoise deaths for the current season to 65,000.
Commendable as EDF's proposal for conciliation may be, it cannot be adopted by the Court. The problem with the quota approach is that the Court has no more idea of what level of killing would be consistent with the MMPA than does the agency; thus, the setting of a quota would only insure that the killing and injuring of porpoise in violation of the MMPA will continue, albeit at a decreasing rate. Moreover, it is hardly appropriate at this point to suggest that the incidental taking of marine mammals should be allowed to continue while the agency works toward compliance. Since the two-year grace period expired on October 20, 1974, the only limits the agency has placed on the general license to take marine mammals have concerned certain gear and fishing techniques; the agency has never set a limit on the number of porpoise which can be taken, despite the fact that incidental porpoise mortality during this period has been on the rise.
Therefore, in light of the agency's continued failure to follow the mandate of Congress, the Court feels that the only appropriate relief at this time is to stop completely the incidental killing of porpoise unless and until the federal defendants are able to determine, as the Act plainly requires, that such killing is not to the disadvantage of the porpoise and is otherwise consistent with the intent of the MMPA.
The Court realizes that the per-ton cost of catching tuna in some ocean areas may rise if purse seiners are prevented from fishing "on porpoise" until the requirements of the MMPA are satisfied. But steps which ensure the protection and conservation of our natural environment must, almost inevitably, impose temporary hardships on those commercial interests which have long benefited by exploiting that environment. The people of this country, speaking through their Congress, declared that porpoise and other marine mammals must be protected from the harmful and possibly irreversible effects of man's activities. It is the obligation and intention of this Court to honor that declaration.
An Order in accordance with the foregoing shall be entered of even date herewith.
Charles R. Richey United States District Judge
DECLARATORY JUDGMENT AND ORDER
Upon consideration of plaintiffs' motions for summary judgment and defendants' cross motions for summary judgment and in accordance with the Memorandum Opinion of the Court of even date herewith, it is, by the Court, this 11th day of May, 1976,
ORDERED, that plaintiffs' motions for summary judgment be, and the same hereby are, granted; and it is
FURTHER ORDERED, that defendants' cross motions for summary judgment be, and the same hereby are, denied; and it is
FURTHER ORDERED, that the current regulations, general permit, and certificates of inclusion authorizing the taking of marine mammals incidental to commercial fishing activities be, and the same hereby are, declared void as contrary to the Marine Mammal Protection Act of 1972, 16 U.S.C. § 1361 et seq. ; and it is
FURTHER ORDERED AND DECREED, that the federal defendants be, and the same hereby are, enjoined from issuing any permit authorizing the taking of marine mammals by commercial fishermen unless and until the agency has complied with the Marine Mammal Protection Act and with the Memorandum Opinion of the Court of even date herewith; and it is
FURTHER ORDERED, that the effective date of this Order be, and the same hereby is, stayed until May 31, 1976, to provide adequate time for its implementation in accordance with the Court's Opinion of even date herewith; and it is
FURTHER ORDERED, that the federal defendants shall submit, within ten (10) days of the date of this Order, a plan indicating how they will supervise compliance with this Order and Memorandum Opinion of the Court.
Charles R. Richey United States District Judge