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May 11, 1976

ELLIOT L. RICHARDSON, et al., Defendants. FUND FOR ANIMALS, et al., Plaintiffs, v. ELLIOT L. RICHARDSON, et al., Defendants

The opinion of the court was delivered by: RICHEY


 These consolidated actions are before the Court on cross motions for summary judgment. At issue in this case are the statutory limitations on the authority of the Secretary of Commerce to adopt regulations, pursuant to the Marine Mammal Protection Act of 1972 (MMPA), Pub. L. 92-522, 86 Stat. 1027 et seq., 16 U.S.C. § 1361 et seq. (1974 Supp.), that provide for the issuance of permits for the "taking" *fn1" of porpoise incidental to commercial fishing activities. The provisions of the MMPA which are relevant to this suit raise important questions of first impression. *fn2" Jurisdiction is provided by 5 U.S.C. § 702 (Administrative Procedure Act); 28 U.S.C. § 1331 (federal question); and 28 U.S.C. § 1362 (mandamus).

 Plaintiffs and plaintiff-intervenors, fourteen organizations whose common purpose is to protect and enhance the natural environment, assert that defendants have breached their duty under the MMPA to protect porpoise from commercial exploitation and request that the Court grant various types of injunctive relief until such time as defendants have fully complied with the requirements of the MMPA. *fn3"

 The defendants in this case are the Secretary of Commerce, the Administrator of the National Oceanic and Atmospheric Administration (NOAA), and the Director of the National Marine Fisheries Service (NMFS). Pursuant to lawful delegations by the Secretary and the Administrator of NOAA, the Director of NMFS is currently responsible for carrying out the functions prescribed by the MMPA. Five organizations representing key elements of the United States tuna industry have been permitted to intervene as defendants. One of these defendant-intervenors, the American Tunaboat Association (ATA), is the recipient of a general permit issued by defendant NMFS which authorizes the "taking" of porpoise incidental to the course of commercial fishing operations. Contrary to plaintiffs' allegations, defendants uniformly assert that NMFS has carried out the purposes of the MMPA in an entirely responsible manner and that the agency has been diligent to develop and require the use of fishing gear and techniques designed to reduce porpoise mortality rates.

 After careful consideration of the voluminous record compiled in this case, as well as the able arguments of counsel, the Court has concluded that, there being no material facts in dispute, plaintiffs' motions for summary judgment should be granted, for the reasons set forth below.


 The origin of this dispute is the recent development of a highly efficient and economical mode of fishing for yellowfin tuna. Prior to 1960, yellowfin tuna were caught primarily by fishing with poles and live bait. During the period from 1957 to 1961, a more efficient means of catching tuna was developed, utilizing the commonly-known fact that yellowfin tuna in the eastern tropical Pacific frequently associate with certain species of dolphins (ordinarily called porpoise). Since porpoise are larger and more active on the ocean's surface than tuna, yellowfin tuna can be found by searching for porpoise. In this process of fishing "on porpoise," speedboats herd groups of porpoise into large purse seine nets. The yellowfin tuna swim beneath the porpoise, and both are trapped when the net is closed or "pursed" around them. Although most of the porpoise escape by swimming through an opening provided in the top of the net, some instead dive to the bottom of the net where their snouts become caught in the webbing; unable to surface, these air-breathing mammals then suffocate. Others apparently drown as a result of shock, physical injury, or the refusal to abandon other porpoise that are entangled in the net.

 Since the early 1960's, purse-seine fishing for tuna has burgeoned. According to NMFS, between one-third and one-half of the domestic tuna catch is taken in association with porpoise. *fn4" With this increase in purse-seine fishing, the number of porpoise killed as a consequence has also increased. It is estimated that incidental porpoise mortalities during the two years preceding the enactment of the MMPA totaled more than 600,000. *fn5"

 A. The Marine Mammal Protection Act of 1972.

 In response to the massive, albeit unwanted, killing of porpoise and other marine mammals incident to commercial enterprise, Congress found, in passing the MMPA, that "certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities. . . ." 16 U.S.C. § 1361(1). In drafting the MMPA, Congress considered essentially two alternative approaches to averting this danger. *fn6" The first was a total prohibition against the taking or importation of marine mammals. The second approach was a scientific management program with flexibility to ensure the protection of each species in light of specific environmental factors affecting that species. The flat ban proposal was rejected, not on principle, but because it was considered inflexible, unrealistic, and unlikely to benefit the animals concerned. *fn7" Instead, Congress adopted a compromise between the two approaches. The MMPA establishes a moratorium on the taking and importation of marine mammals, but the moratorium can be modified by regulations and permits that are consistent with the goal of protecting marine mammals. 16 U.S.C. § 1371.

 In addition, a special exception to the moratorium was created for commercial fishermen: during the two-year period immediately following October 21, 1972, the effective date of the Act, the taking of marine mammals incidental to commercial fishing operations was permitted, subject to certain interim regulations requiring the use of fishing techniques which produced "the least practicable hazard to marine mammals . . . ." 16 U.S.C. § 1371(a)(2). The legislative history of the MMPA indicates that Congress granted this special exemption after being assured by representatives of the tuna industry that they had found a solution, through fishing gear modifications, to the porpoise mortality problem. *fn8" Two years were thus provided for the refinement of these fishing gear modifications and for their deployment to the tuna fleet. *fn9" Section 1381(a) of the MMPA reflects this congressional intent and directs the defendants during this two-year period:

". . . to immediately undertake a program of research and development for the purpose of devising improved fishing methods and gear so as to reduce to the maximum extent practicable the incidental taking of marine mammals in connection with commercial fishing."

 Section 1371(a)(2) of the Act provides that, after the expiration of this temporary grace period, any taking of marine mammals by commercial fishermen must be under a permit issued pursuant to section 1374, and subject to regulations prescribed under section 1373. *fn10" Additionally, section 1371(a)(3)(A) provides that in determining whether to waive the moratorium on the taking of marine mammals after October 20, 1974, the defendants:

". . . must be assured that the taking of such marine mammal is in accordance with sound principles of resource protection and conservation as provided in the purposes and policies of this chapter. . . ." (Emphasis added).

 The guiding principles of resource protection and conservation referred to in § 1371(a)(3)(A) are set forth in §§ 1361(2) and (6) of the Act as follows:

"(2) such species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population. . . . *fn11"
"(6) . . . it is the sense of the Congress that [marine mammals] should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. . . ." (Emphasis added).

 As noted above, section 1373 of the MMPA governs the promulgation of regulations relating to the taking of marine mammals. This section directs the agency, prior to issuing any permits, *fn12" to prescribe regulations with respect to the taking and importing of animals from each species of marine mammal as they deem "necessary and appropriate to insure that such taking will not be to the disadvantage of those species and population stocks and will be consistent with the purposes and policies set forth in section 1361 of this title." (Emphasis added). Furthermore, in prescribing these regulations, defendants must comply with certain procedural requirements set forth in section 1373(d) of the Act, as follows:

(1) A statement of the estimated existing levels of the species and population stocks of the marine mammals concerned;
(2) A statement of the expected impact of the proposed regulation on the optimum sustainable population of such species or population stock;
(3) A statement describing the evidence before the Secretary upon which he proposes to base such regulations; and
(4) Any studies made by or for the Secretary or any recommendations made by or for the Secretary of the Marine Mammal Commission which relate to the establishment of such regulations." (Emphasis added).

 Only after regulations are properly prescribed under section 1373 of the MMPA are defendants authorized to issue permits under section 1374 of the Act. *fn13" In section 1374, Congress provided still further safeguards for the protection and conservation of marine mammals. Initially, § 1374(d)(3) imposes a strict burden of proof on each applicant seeking to take or import marine mammals:

"The applicant for any permit under this section must demonstrate to the Secretary that the taking or importation of any marine mammal under such permit will be consistent with the purposes of this chapter and the applicable regulations established under section 1373 of this title." *fn14"

 Assuming this burden is met, § 1374(b)(2)(A) then requires that any permit issued under this section specify, inter alia, "the number and kind of animals which are authorized to be taken or imported." *fn15"

 B. Action at the Agency Level.

 On March 13, 1974, approximately seven months prior to the expiration of the two-year grace period discussed above, defendant NMFS published a notice of intent to prescribe regulations pursuant to §§ 1371(a)(2) and 1373 of the MMPA with respect to the incidental taking of marine mammals by commercial tuna fishermen. The existing population levels of the marine mammals concerned were described in this notice as "unknown" and the expected impact of the proposed regulations on the optimum sustainable population of each species was reported as "not ...

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