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COMMITTEE FOR HUMANE LEGISLATION, INC. v. RICHARDS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


May 11, 1976

COMMITTEE FOR HUMANE LEGISLATION, INC., Plaintiff,
v.
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

MEMORANDUM OPINION

 UNITED STATES DISTRICT JUDGE CHARLES R. 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.

 I. BACKGROUND

 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:

 

"Regulations prescribed to carry out this section with respect to any species or stock of marine mammals must be made on the record after opportunity for an agency hearing on both the Secretary's determination to waive the moratorium pursuant to section 1371(a)(3)(A) of this title and on such regulations, except that, in addition to any other requirements imposed by law with respect to agency rulemaking, the Secretary shall publish and make available to the public either before or concurrent with the publication of notice in the Federal Register of his intention to prescribe regulations under this section --

 

(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 known due to lack of knowledge of the sizes of porpoise populations and other population dynamic factors. . . ." 39 Fed. Reg. 9685 (1974).

  On April 5, 1974, the agency published proposed regulations in the Federal Register, 39 Fed. Reg. 12356 (1974), and a hearing on the regulations was held on May 15-16, 1974. Plaintiffs participated in this hearing and opposed the proposed regulations on the grounds that defendants had not complied with the requirements of the MMPA. On July 15, 1974, an administrative law judge issued a recommended opinion in which he concluded that the proposed regulations providing for the issuance of permits should, with certain modifications, be adopted.

 On September 5, 1974, defendants published the initial version of the final regulations, 39 Fed. Reg. 32117 (1974), providing for the issuance of general permits to classes of fishermen using one of five categories of fishing gear. The regulations that governed the tuna purse-seining permits and certificates of inclusion required the use of various gear and fishing techniques designed to reduce incidental porpoise mortality. 50 C.F.R. § 216.24(d)(2). On September 8, 1974, the agency published a notice that the ATA had applied for a general permit to take marine mammals pursuant to the regulations published on September 5, 1974. 39 Fed. Reg. 33813 (1974). Plaintiff Environmental Defense Fund opposed this application in a letter to defendants dated October 10, 1974. Thereafter, the ATA was granted a general permit under which certificate of inclusion holders were allowed to take, subject to restrictions which might be imposed as a result of future hearings, an unlimited number of marine mammals during the period from October 21, 1974, to December 31, 1975.

 Responding in part to preliminary findings by the Southwest Fisheries Center that the population of spotted porpoise was dangerously low, the agency held further public hearings on December 10-11, 1974. Dr. Kenneth Norris, testifying at the hearings on behalf of the Marine Mammal Commission, *fn16" stated:

 

"It is our conclusion that even the most conservative estimate of porpoise mortality in the Eastern Tropical Pacific Tuna Fishery . . . represents an unacceptably high level of mortality, both in terms of the specific charge of the Marine Mammal Protection Act to reduce the rate of such mortality and serious injury to insignificant levels approaching zero and in terms of the overall protection and conservation policy objectives of the Act to maintain the health and stability of the marine ecosystem." Hearing Transcript, p. 67 (emphasis added).

 As a result of these hearings, defendants published a notice in the Federal Register that certain changes in fishing techniques would be required in the tuna industry's permit, 40 Fed. Reg. 764 (1975); and that it was the agency's goal to reduce the porpoise mortality rate by fifty per cent for 1975. Id. at 765. Subsequently, however, the SWFC Report, dated August 8, 1975, stated that the 1975 total observable porpoise kill in the eastern Pacific Ocean "will probably fall within the range of 93,000 to 214,000 animals" and that it appeared that "the estimated total mortality of porpoises will probably increase in 1975 over the level estimated for 1974." (SWFC Report at 34.)

  On August 6, 1975, the ATA applied for a renewal of its general permit for 1976. In this application, ATA stated that "[approximately] 85,060 dolphin mortalities are projected and an unknown number will be injured." (October 1975 Hearing Exhibit No. 1, at 3.) On September 8, 1975, the agency announced proposed regulations for the 1976 fishing season and indicated therein its intention to establish a quota for 1976 somewhere in the range of 50,000 to 110,000 animals "on a basis that the allowable kill will, with reasonable assurance, enable the principal stocks of porpoises to increase in size." 40 Fed. Reg. 41531 (1975) (emphasis added). In this same notice, estimates were given for existing population levels of the two species of porpoise principally involved in tuna purse seining, *fn17" and it was noted that, with respect to all species, "[optimum] sustainable population levels have not been determined; therefore, no statement can be made as to the effect of the proposed action on optimum sustainable populations." 40 Fed. Reg. 41536 (1975). After then estimating the annual incidental mortality rate for these same two species, the notice went on to state:

 

"At these levels of incidental fishing mortality, the present population stocks are either stable or increasing or decreasing slightly. There is no evidence that the porpoise populations would substantially increase or decrease as a result of the regulations and reissuance of the general permit." Id. (emphasis added).

 On October 9-10 and 24-25, 1975, the agency held public hearings on its proposal to set a quota on porpoise mortality for 1976. *fn18" In a letter to the Director of NMFS dated November 6, 1975, the Marine Mammal Commission, through its General Counsel, stated:

 

". . . [The] Commission finds no basis for confidence that any number above zero would provide the basis for 'assurance' that the principal stocks of porpoise will increase in size. An intensive research program is necessary to assess and monitor population status and trends. Recent discussions indicate that adequate resources and commitments may be forthcoming. In the interim, the Commission feels that the applicant [ATA] should be permitted to take the requested number [85,060] subject to intensive and continuing review of existing and new data concerning population parameters. . . ." Letter from Robert Eisenbud to Robert Schoning at 5 (emphasis added).

 On December 5, 1975, the agency announced in the Federal Register that it would not, initially, impose a quota for 1976 as originally proposed, 40 Fed. Reg. 56899 (1975), but that it would do so "in May or thereafter if the total number of porpoise deaths for the year is projected to exceed 70 per cent of the final estimated 1975 kill." *fn19" Id. at 56900. The agency stated that it believed that its approach:

 

". . . represents, at this time, the most reasonable way that it can meet its responsibility to reduce porpoise mortality incidental to yellowfin tuna fishing and its responsibility not to shut down or significantly curtail the activities of the tuna fleet as set forth in the Marine Mammal Protection Act and its legislative history." 40 Fed. Reg. 56899 (1975).

 On December 19, 1975, defendant NMFS issued to ATA a general permit allowing the incidental taking of marine mammals subject only to certain restrictions on fishing techniques and gear as were set forth in the agency's December 5 regulations. *fn20" 40 Fed. Reg. 56899 (1975).

 II. ISSUES

 A. The Primary Purpose of the MMPA is to Protect Marine Mammals; the Act was not Intended as a "Balancing Act" Between the Interests of the Fishing Industry and the Animals.

 Plaintiffs allege, and the Court agrees, that the defendants have failed to meet specific requirements of the MMPA with respect to the issuance of regulations and permits providing for the incidental taking of marine mammals. Before turning to a consideration of those violations, however, the Court will consider a more basic issue in contention: the intended general purpose of the Act.

 Plaintiffs assert that the primary purpose of the MMPA is to protect marine mammals and that other interests, such as those of the tuna industry, should be served only if they are compatible with this primary goal. On the other hand, defendants take the position that the legislative history of the MMPA indicates Congress' "dual concern" for the well-being of the porpoise and of the tuna industry, and that this dual concern was intended to be expressed in action taken at the agency level. *fn21"

 The Court finds plaintiffs' position more persuasive. The language of the Act itself, as discussed in part I-A, supra, clearly indicates that Congress enacted the MMPA for one basic purpose: to provide marine mammals, especially porpoise, with necessary and extensive protection against man's activities. The Congressional declaration of policy set forth in section 1361(6) is representative of the Act's paramount concern for marine mammals:

 

"[Marine] mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of Congress that they 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. . . ." *fn22"

  An overwhelming number of additional statutory provisions, discussed in part I-A, supra, reflect the Act's foremost aim to protect marine mammals. *fn23"

 The legislative history also contains numerous references to the Act's primary objective. For example, Representative Garmatz, Chairman of the full House Committee which considered H.R. 10420, stated on the House floor that "[this] legislation is designed to do exactly what its title implies -- provide badly needed protection to marine mammals." 118 Cong. Rec. 7685 (1972). Similar sentiments were expressed by Representative Dingell, Chairman of the House Subcommittee which conducted hearings on H.R. 10420:

 

". . . I am aware that there are representatives of animal protection groups that object to this bill, and I am also aware that there are representatives of organizations which make use of marine mammals who are also unhappy with the bill in its present form. I would say to them, as the committee has said, that this bill [H.R. 10420] provides that level of protection and responsibility which is most in line, not with the interests of these groups, but with the interests of the animals themselves." 117 Cong. Rec. 44951 (1971) (floor debates) (emphasis added). *fn24"

 It would be possible to elaborate even further on the overwhelming evidence in the statute and the legislative history as to the purpose of the Act. However, in light of the fact that the Court has already discussed the statutory scheme in detail in part I-A, supra, the Court turns instead to a consideration of the evidence marshalled by defendants in support of their position that the MMPA mandates a "balancing act" between the interests of the mammals and those of the tuna industry.

 Defendants rely primarily on three statements in the legislative history. This Court finds that none of those statements are persuasive in light of the numerous indications to the contrary discussed above.

 For example, defendants rely on floor remarks of Representative Goodling, a member of the joint conference committee which considered the MMPA, to the effect that "there must be an appropriate balancing of equities between the two extremes of a zero mortality rate and elimination of a commercial fishing industry." 118 Cong. Rec. 34643 (1972). But it is clear from a consideration of the entirety of his remarks that they were made in the context of a discussion of the declaration in 16 U.S.C. § 1371(a)(2) that ". . . it shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals . . . be reduced to insignificant levels approaching a zero mortality and serious injury rate." (See note 10, supra.) Representative Goodling's remarks were intended as his interpretation of the general "zero mortality" policy goal expressed in section 1371(a)(2); they did not constitute a suggestion that any "balancing of equities" should affect the agency's compliance with the more specific directives of the Act, *fn25" e.g., 16 U.S.C. §§ 1373 and 1374. In any case, even assuming arguendo that a broad reading of Mr. Goodling's comments is justified, they are entitled to little probative value in light of the plain meaning of the MMPA. Not even formal reports, much less the statements of individual committee members, can be resorted to for the purpose of construing a statute contrary to its plain terms. Pennsylvania Railroad Co. v. International Coal Mining Co., 230 U.S. 184, 199, 57 L. Ed. 1446, 33 S. Ct. 893 (1913); FTC v. Manager, Retail Credit Co., 169 U.S. App. D.C. 271, 515 F.2d 988, 995 n.14 (D.C. Cir. 1975); see 2A Sutherland Statutory Construction para. 48.14, at 220 (4th ed. 1973).

 Defendants also rely on language in the Senate Committee Report to establish the proposition that NMFS can authorize the incidental taking of marine mammals if it is satisfied that the tuna industry is employing the best feasible technology to prevent harm to marine mammals:

 

"This subsection [ 16 U.S.C. § 1373(b)] lists the general criteria which may be considered by the Secretary in the process of prescribing regulations under the Act. These include a wide range of factors such as the effect of limitations on present and future animal populations, U.S. treaty requirements, ecological and environmental considerations, the conservation and development of fishery resources and economic and technological feasibility.

 

"The Secretary, for example, in regulating the operations of the tuna industry with respect to the incidental catching of porpoises must consider the technical capability of these fishermen to avoid injury to porpoises. It is not the intention of the Committee to shut down or significantly to curtail the activities of the tuna fleet so long as the Secretary is satisfied that the tuna fishermen are using economically and technologically practicable measures to assure minimal hazards to marine mammal populations." S. Rep. No. 92-863, supra note 7, at 16. *fn26"

 This excerpt is, admittedly, the strongest evidence in support of defendants' view of the Act. But the Court cannot rely on this isolated statement to conclude that the MMPA merely establishes a "best feasible technology" standard. First, the weight of the legislative history is to the contrary, as noted above. More importantly, the entire MMPA, including the section explained in the excerpt above, rejects a "means oriented" approach. That is, the Act is not primarily a directive as to how marine mammals may be taken; rather, it is result-oriented: it directs that an estimated impact of any proposed taking be made and provides that such taking may not be authorized if the impact is to the disadvantage of the mammals involved. *fn27" Thus, under the scheme of the MMPA, even use of the best technology available cannot justify results inconsistent with the purpose of the Act. Accordingly, defendants' assertion must be rejected.

 Finally, defendants rely on a statement made by Representative Dingell, Chairman of the House Subcommittee, during an oversight hearing two years after the enactment of the MMPA. Chairman Dingell stated that a "rule of reason" would be applied to the operation of the MMPA and that "[it] was not our intention that commercial fishing be brought to a halt." *fn28" The Court notes first that there is nothing in Representative Dingell's statement contrary to the Court's view of the Act. It is clear that as long as the primary goal of the Act, to protect marine mammals, is served, commercial fishing can continue. Were this not the case, Congress would not have given the agency the power to modify the moratorium on the taking of marine mammals through the issuance of regulations and permits. In any case, the Court notes that remarks such as these, made by an individual member of Congress after the passage of the Act, cannot be given effect to set aside the plain meaning of the Act. See National Woodwork Mfrs. Ass'n. v. NLRB, 386 U.S. 612, 639 n. 34, 18 L. Ed. 2d 357, 87 S. Ct. 1250 (1967); G. Folsom, Legislative History 36 (1972).

 In conclusion, the Court finds defendants' contentions concerning the meaning of the Act unconvincing. The MMPA does not direct the defendants to afford porpoise only that amount of protection which is consistent with the maintenance of a healthy tuna industry. The interests of the marine mammals come first under the statutory scheme, and the interests of the industry, important as they are, must be served only after protection of the animals is assured.

 B. Before the Agency can Prescribe Regulations to Provide for the Taking of Marine Mammals, It Must Find, Inter Alia, that the Expected Impact of Such Regulations on the Optimum Sustainable Population of the Species Involved is not to the Disadvantage of the Animals.

 Having established that the primary goal of the MMPA is to ensure the well-being of porpoise and other marine mammals, the Court now turns to the agency's performance of its specific responsibilities with respect to the issuance of regulations for the incidental taking of marine mammals. As discussed briefly in part I-A, supra, the agency's responsibilities in prescribing such regulations are set out in 16 U.S.C. § 1373, which, consistent with the basic theme of the Act, requires the agency to proceed slowly. This approach was adopted by Congress in light of the grave uncertainties as to whether porpoise and other marine mammal populations are in danger of extinction or depletion as a result of man's activities. Thus, the House Committee report states:

 

"In the teeth of this lack of knowledge of specific causes, and of the certain knowledge that these animals are almost all threatened in some way, it seems elementary common sense to the Committee that legislation should be adopted to require that we act conservatively -- that no steps should be taken regarding these animals that might prove to be adverse or even irreversible in their effects until more is known." H.R. Rep. No. 92-707, supra note 7, at 15, U.S. Code Cong. & Admin. News, 1972, p. 4148.

 With this in mind, Congress established, in sections 1371(a)(3)(A) and 1373(a) of the Act, a precondition to the issuance of any regulations which provide for the taking of marine mammals: the agency must be assured, prior to adopting such regulations, that the taking provided for will not be to the disadvantage of the marine mammals involved and is otherwise consistent with the purposes and policies of the MMPA. *fn29" Moreover, Congress required the agency to make this determination on the basis of certain critical information, including the estimated impact of the proposed taking on the effort, mandated by the Act, to achieve an optimum sustainable population for each species of marine mammals. *fn30" Congress was also careful to provide that if, on the basis of this information, the agency is able to determine that regulations providing for the taking of marine mammals would serve the purposes of the Act, then the public must be given an opportunity to review that determination and the facts supporting it. Thus, as discussed in part I-A, supra, section 1373(d) of the MMPA directs the defendants, inter alia, to publish and make available, prior to conducting public hearings on the proposed regulations:

 

(1) a statement of the estimated existing population levels of the species concerned;

 

(2) a statement of the expected impact of the proposed regulations on the optimum sustainable population of those species;

 

(3) a statement describing the evidence upon which such regulations are based.

 After placing this obligation on the agency to discover and make available critical information prior to issuing regulations under section 1373, Congress then established a mechanism for gathering this information by: 1) authorizing and directing the agency to make grants to persons or institutions for research in subjects relevant to the protection and conservation of marine mammals, see § 1380; 2) establishing the Marine Mammal Commission to assist the agency in carrying out the purposes of the Act, see § 1401; and 3) ordering the MMC to establish a Committee of Scientific Advisors on Marine Mammals to serve as an expert consulting body to the Commission, see § 1403.

 Nonetheless, Congress foresaw the possibility that, in given situations, there would be a lack of scientific information as to whether a proposed level of taking would be to the disadvantage of the marine mammals involved. House Subcommittee Chairman Dingell explained the consequences of this possibility:

 

"Before issuing any permit for the taking of a marine mammal, the Secretary must first have it proven to his satisfaction that any taking is consistent with the purposes and policies of the act -- that is to say, that taking will not be to the disadvantage of the animals concerned. If he cannot make that finding, he cannot issue a permit. It is that simple." 118 Cong. Rec. 7686 (1972) (floor remarks) (emphasis added).

 This conclusion is supported elsewhere in the legislative history. For example, the House Committee rejected, as inflexible, a proposed amendment providing for a strict two-year moratorium on the taking of most types of marine mammals, noting in support of its decision that "[as] a practical matter, with regard to practically all of the species and stocks involved, there will exist a de facto moratorium for at least two years, and very probably longer." H.R. Rep. No. 92-707, supra note 7, at 20, U.S. Code Cong. & Admin. News 1972, p. 4153 (emphasis added). This was because, as the Committee explained, (1) regulations providing for the taking of marine mammals could only be prescribed on the basis of scientific evidence affirming that such taking would not be to the disadvantage of the animals, and (2) "with respect to almost every species and stock of animals today, there is little evidence to indicate what should be done one way or the other, and. . . the development of this evidence will take time -- in most cases more than two years." Id.

 With this understanding of the standard which section 1373 of the Act imposes on the federal defendants, the Court now considers whether the agency has met its obligations. As discussed in part I-B, supra, the agency's 1974 notice of intent to prescribe regulations governing the 1975 fishing season failed to include both a statement of the existing population levels and a statement of the expected impact of the regulations on the optimum sustainable population levels. On September 8, 1975, defendants published a notice of intent to prescribe regulations for the 1976 season which included existing population estimates for the two species which account for approximately eighty-two per cent of the total annual porpoise kill. But the agency again failed to provide estimates of the expected impact of the regulations on the optimum sustainable population levels, since it was unable to determine what the optimum sustainable population of each species was. However, the agency did state that "[there] is no evidence that the porpoise populations would substantially increase or decrease as a result of the regulations and reissuance of [ATA's] general permit." 40 Fed. Reg. 41536 (1975). See part I-B, supra. Plaintiffs insist that this statement and others to the same effect are "patently deficient" in light of what the MMPA requires. In response, defendants take the position that:

 

"[the] agency's statements are not, as claimed by plaintiffs, 'patently deficient.' There was full disclosure of what NMFS knew about porpoise populations and about the impact of tuna fishing on porpoise. Where there were unknowns these were set out forthrightly." *fn31"

 For the reasons set forth below, the Court agrees with plaintiffs that defendants' statements are clearly insufficient to meet the requirements of the Act.

 First, "what NMFS knew about porpoise populations and about the impact of tuna fishing on porpoise" was at best a statement of the expected impact of the 1976 regulations on the existing porpoise population levels. Yet, the population goal articulated by the Act is not just a stable population, but rather, the optimum sustainable population for a given species. Therefore, Congress clearly could not have intended that the agency authorize the taking of marine mammals merely on the basis of the knowledge that present population levels would be unaffected, since it is precisely these existing population levels which, Congress feared, are dangerously low. Congress accordingly required that the agency act only on the basis of the very knowledge which the agency admits is unknown: the effect of any proposed taking on optimum sustainable population levels.

 Second, although the agency acted in good faith in stating openly what it did not know, the issue here is not "good faith," but instead the action which the agency authorized in spite of its admitted lack of knowledge. In light of the Act's requirements, the defendants' conduct was in violation of both the letter and the spirit of the MMPA. *fn32" The Court recognizes, as defendants point out, that the task of defining optimum sustainable population levels will be difficult; it is also clear that Congress itself realized that considerable time -- probably more than two years -- would be needed to complete this task. See, page 310, supra. However, it was Congress' plain intention that, until such time as these difficult estimates could be made, the status quo of the porpoise -- not that of the tuna industry -- should be preserved.

 Defendant-intervenors have argued exhaustively that the plight of the porpoise will actually worsen if NMFS is ordered to do what plaintiffs assert and this Court believes the MMPA clearly requires it to do; for, they argue, such compliance would drive a substantial number of domestic purse-seine vessels and crew members to ships of foreign nations, where there is little or no official concern for porpoise protection. While the basis for this speculation is highly questionable, *fn33" it is, in any event, not the proper role of this Court to restructure congressional directives, the possible consequences of which were undoubtedly considered, and accepted, by both houses of Congress and the President of the United States.

 The Court therefore holds no more than the Act clearly commands: that NMFS must publish and make available to the public, prior to or concurrent with publication of notice of its intent to prescribe regulations under section 1373 of the MMPA, reasonable estimates of (1) the existing population level of each species of porpoise affected by the proposed regulations, (2) the optimum sustainable population of each of these species, and (3) the expected impact of those regulations on the effort, mandated by the Act, to achieve an optimum sustainable population level for each species. After publishing each of these (and all other required) estimates and conducting public hearings on the proposed regulations, the NMFS must then determine whether, based on these estimates and hearings, the total impact of the proposed taking would be to the disadvantage of the marine mammals concerned. At that time, regulations may be promulgated only if the agency is assured that the taking provided for therein will not be to the disadvantage of the animals and will be otherwise consistent with the purposes and policies of the MMPA.

 C. Each Applicant for a Permit Must Demonstrate that the Taking Under Such Permit Will Serve the Purposes of the MMPA; Furthermore, any Permit Issued Under the Act Must Specify the Number and Kind of Marine Mammals Which are Authorized to be Taken.

 As briefly discussed in part I-A, supra, section 1374 of the MMPA governs the process of issuing permits for the taking of marine mammals and provides, as does section 1373 with respect to regulations, specific safeguards for the protection and conservation of marine mammals. Section 1374(d)(3) imposes a burden on the applicant for any general permit to show that a proposed taking will be consistent with the purposes of the Act. The House Committee Report explains that this requirement prevents a permit from being issued unless the applicant can prove that the taking authorized by the permit would not work to the disadvantage of the marine mammals concerned. See part I-A, supra. In the instant case, it is clear that defendant-intervenor ATA failed to sustain, or to attempt to sustain, the burden imposed by section 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. *fn34" 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.

 III. RELIEF

 Having established that the federal defendants violated specific requirements of the MMPA *fn35" 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. *fn36" 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. *fn37"

 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


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