plans to do. He is not free, however, to implement that change by adopting an interpretation of the MMPA which conflicts with the language and intent of the statute. Nor is it for this Court to institute such a change in light of clear statutory purpose and mandate to do otherwise.
The Court need not consider the Federation's motion for preliminary injunction at this time since its decision on the Kokechik claims effectively renders the Federation's claims moot.
(2). The threat of irreparable injury to the plaintiff in the absence of injunctive relief:
The Kokechik petitioners claim that harbor porpoise, northern right whale dolphin, Pacific white-sided dolphin, common dolphin, sea lions, and other marine mammals will be taken in the fishery and that these takings will irreparably harm the stocks of those species. The CEE petitioners also allege irreparable injury to various marine mammal populations, including the depleted Pribilof Island fur seal. As was asserted by the Kokechik petitioners, the CEE petitioners also claim that, once marine mammal populations are harmed, the damage cannot be undone or compensated for. The MMPA requires the agency to act as a trustee for these mammals and protect their interests. Unless a preliminary injunction is granted and the fishing permit rescinded so that the mandate of the MMPA may be properly carried out, irreparable harm will be done to the enumerated mammal populations.
Instruction is given by the Supreme Court in Amoco Production Co. v. Gambell, 480 U.S. 531, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987) which states "environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.
If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." Id. 107 S. Ct. at 1404.
(3). The possibility of substantial harm to other interested parties from the injunctive relief and (4). The public interest:
Respondents argue that the issuance of a preliminary injunction will harm the United States should Japan choose to dishonor the INPFC and a destabilization of the international conservation regime result. This potential for harm, however, may be alleviated, should it occur, if Congress were to waive the requirements of the MMPA as to the Japanese Federation for this season as it has done for the past six years. Moreover, the likelihood of harm is speculative.
The harm the Japanese Federation alleges will result from the issuance of a preliminary injunction appears to be strictly economic. The Federation will be unable to continue gillnet fishing operations within the FCZ pending further administrative or Congressional action.
When the irreparable harm to the marine mammal populations which will occur, if an injunction is not granted, is balanced against the harms alleged by respondent and the Federation, the interests of the marine mammal populations at stake in this case outweigh those of the other interested parties. This is especially apparent when the public interest in protecting the environment is considered. While this Court recognizes that "'a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law,'" Amoco, at 1402, on these facts, unlike the facts of Amoco, after balancing the competing interests involved, the Court concludes that the purpose of the MMPA -- to restore, maintain, and protect the integrity of the marine mammal populations -- would be undermined by allowing the statutory violation to continue.
Unlike Weinberger v. Romero-Barcelo, 456 U.S. 305, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982),
here it is certain that unlawful takings of marine mammals will occur if the permit issued to the Japanese Federation is allowed to stand. Congress has already determined that such takings are harmful to the environment and this Court has no basis on which to invalidate that determination. Furthermore, here, unlike the Amoco case, the public interest does not lie in protecting the economic well-being of the Federation fishermen, but, as clearly required by the MMPA, in carrying out Congress' will in protecting the marine mammals and maintaining the health and stability of the marine ecosystem.
Upon consideration of the motions for a preliminary injunction, the legal memoranda and exhibits, the argument of counsel, and consistent with the accompanying Memorandum Opinion, it is this 12th day of June, 1987,
ORDERED that the motion of the Federation be, and hereby is, denied as moot; it is further
ORDERED that the motions of petitioners Kokechik and the Center for Environmental Education be, and hereby are granted; it is further
ORDERED that Respondents be, and hereby are, preliminarily enjoined from granting a permit to the Federation of Japan Salmon Fisheries Cooperative Association in the United States Exclusive Economic Zone; and it is further
ORDERED that this preliminary injunction shall not issue until appropriate bond is posted. Counsel are invited to submit recommendations as to the appropriate bond not later than noon on June 19, 1987.