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June 12, 1987

Federation Of Japan Salmon Fisheries Cooperative Association, Petitioners,
Malcolm Baldridge, et al., Respondents; Kokechik Fishermen's Association, et al., Petitioners, v. Malcolm Baldridge, et al., Respondents; Center For Environmental Education, et al., Petitioners, v. Malcolm Baldridge, et al., Respondents

The opinion of the court was delivered by: JOHNSON

 Norma Holloway Johnson, Judge

 These consolidated cases involve the validity of a May 14, 1987, final decision of respondent Secretary of Commerce ("Secretary"). That decision approved the application of the Federation of Japan Salmon Fisheries Cooperative Association ("the Federation" or "the Japanese Federation") for an incidental take permit under section 1374 of the Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1407 (1972) ("MMPA"), and adopted regulations pursuant to section 1373 of the MMPA which authorize Federation members to take a total of 6,039 Dall's porpoise within the United States' 200 mile fishery conservation zone during the next three years. 50 C.F.R. 216.24(d)(5)(vii).

 Presently before the Court are the motions of petitioners in each of the three cases for a preliminary injunction. Upon consideration of the supporting and opposing memoranda, oral argument of counsel, and the record submitted to the court to date, the motions of the petitioners in Kokechik Fishermen's Association, et al. and Center for Environmental Education, et al., shall be granted. The motion of the Japanese Federation shall be denied as moot.

 Historical Background

 Between 1937 and 1952 Kokechik alleges that Japanese vessels fished extensively for salmon, including salmon of United States origin, in the Bering Sea and North Pacific Ocean and entrapped and drowned significant numbers of various marine mammals in their gillnets. See Kokechik Petition for Review at 8-9. The Federation denies that significant numbers of marine mammals or other animals were taken by the Japanese gillnet fishery prior to 1952 and denies that significant numbers of marine mammals or other animals were taken by the Japanese gillnet fishery between 1952 and 1976. See Answer of Federation at 3.

 The International Convention for the High Seas Fisheries of the North Pacific Ocean, 4 U.S.T. 380, T.I.A.S. No. 2786 ("INPFC"), was signed by Canada, Japan, and the United States in 1952 and entered into force in 1953. The chief motivation behind the INPFC was the desire of the U.S. and Canada to minimize the interception of North American origin salmon by Japan's salmon fishery in the North Pacific and Bering Sea. This was accomplished by the initiation of the "abstention principle" under which Japan agreed to abstain from fishing for salmon east of longitude 175 degrees West in the North Pacific Ocean and Bering Sea.

 The Magnuson Fishery Conservation and Management Act of 1976 ("Magnuson Act") established a 200 mile fishery conservation zone ("FCZ" or now known as the Exclusive Economic Zone "EEZ") surrounding the coast of the U.S. Pursuant to the Magnuson Act, no foreign vessel, including vessels operated by Federation members, may fish within the zone for fish stocks that are fully utilized by U.S. fishermen. This Act directed the Secretary of State, in cooperation with the Secretary of Commerce, to initiate the renegotiation of any treaty pertaining to fishing within the FCZ and for certain other fishery resources beyond the FCZ, which were inconsistent with its provisions. As the 1952 INPFC was inconsistent in several respects with the Magnuson Act, it was determined necessary to renegotiate or terminate the INPFC.

 On February 10, 1977, the U.S. gave notice of its intention to terminate the INPFC in one year unless it was renegotiated in that period. An agreement on a Protocol to the INPFC was signed by Canada, Japan, and the U.S. on April 25, 1978. This Protocol moved the abstention line to 175 degrees East longitude, with the exception of a portion of the north central Bering Sea outside the U.S. FCZ. Additional areas where North American salmon and marine mammals are protected from fishing by Japan under the INPFC include approximately 775,000 square miles outside the U.S. FCZ. The Japanese mothership fleet, in return, is allowed to fish for salmon of primarily Asian origin in 70,000 square miles inside the U.S. FCZ between June 10 and July 31 of each year.

 As part of the newly negotiated INPFC, all parties agreed to establish a program of coordinated scientific research as well as to establish procedures to facilitate observation of the mammal stock and fishing operations. Japan and the U.S. further agreed to a research program designed to reduce or eliminate the incidental take of marine mammals and assess the distribution, abundance, and status of Dall's porpoise taken incidentally in the high seas salmon fishery. The study included the biology, ecology, reproduction, food habits, and age structure of the mammals.

 The North Pacific Fisheries Act of 1954, 16 U.S.C. § 1021 et seq. ("NPFA"), implemented the INPFC in the U.S. It was amended in 1978 to reflect the new Protocol and its Annex concerning the marine mammal research. At that time, in accordance with the North Pacific Fisheries Act and the INPFC, the Japanese fishery was exempted from the incidental take permit requirements of the MMPA for a period of three years, during which time the U.S. and Japan agreed to study the effect of the salmon fishery on marine mammal populations and to work to reduce or eliminate incidental takings. Section 14 of the NPFA stated: "After June 9, 1981, the taking of marine mammals incidental to fishing operations by Japanese vessels within the fishery conservation zone shall be regulated pursuant to the Marine Mammal Protection Act of 1972 . . . ." As the statutory waiver granted in the North Pacific Fisheries Act under which the Japanese operated was to expire in 1981, the Federation submitted an application for an incidental take permit under the Marine Mammal Protection Act on January 19, 1981. This application requested a general permit for three years (1981 to 1983).

 The Marine Mammal Protection Act

 Although the U.S. has allowed the Federation to enter the U.S. FCZ and set gillnets for salmon, its ability to do so is not unconditional. The Federation and the Japanese government acknowledge that Federation members may not fish in the U.S. FCZ unless, while in the zone, they comply with the laws of the U.S. The MMPA is one of the laws Federation members must observe while fishing for salmon within the U.S. fishery conservation zone. It is that law which is at issue in this case.

 Congress expressly found and stated in 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 . . . . 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 . . . ." MMPA § 1361. *fn1"

 Section 1371 of the MMPA imposes a moratorium on the "take" of all marine mammals in water subject to the jurisdiction of the U.S., including the Bering Sea and North Pacific Ocean. The term "take" is defined by the MMPA to mean "harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." MMPA § 1362(12). A moratorium is defined as "a complete cessation of the taking of marine mammals . . . " MMPA § 1362(7). Defendant Secretary of Commerce has interpreted the term "harass" to include "the restraint or detention of a marine mammal, no matter how temporary." 50 C.F.R. § 216.3. Consequently, when a marine mammal entangles itself in a gillnet, even if the mammal manages to struggle free before it drowns, the Federation catcherboat captain who authorized the net to be set has committed a "taking" as the term is defined in the MMPA.

 Regulations implementing the MMPA and establishing procedures by which the general moratorium on the taking of marine mammals in connection with commercial fishing operations may be waived, have been promulgated by the Secretary in 50 C.F.R. Part 216. These regulations establish the requirements which must be met before regulations waiving the moratorium may be promulgated and a marine mammal take permit may be issued, and they also establish the procedures which must be followed in the formal administrative hearing which must be held on any application for a marine mammal take permit. 50 C.F.R. Part 216, Subparts C and G. Permits may be granted if it is shown, on the basis of "the best scientific evidence available", that the taking will not be to the disadvantage of the stocks involved and will be consistent with the purposes and policies of the MMPA. MMPA § 1373(a). Section 1371 states: "In any event it shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate." MMPA § 1371(a)(2).

 In 1981, after formal hearings before an Administrative Law Judge, the National Marine Fisheries Service (the delegate of the Secretary of Commerce with authority to grant permits under the MMPA) agreed with the ALJ's recommended decision to grant a three-year permit with annual quotas for 5,500 Dall's porpoise, 450 Northern fur seals, and 25 Northern sea lions. 46 Fed. Reg. 27056 (May 15, 1981).

 An environmental group challenged the issuance of this permit in Friends of Animals v. Baldridge, No. 81-1547 (D.D.C. 1982). No temporary restraining order or preliminary relief was sought in that case; consequently, one year of fishing under the permit took place and a second was imminent, prior to the court's consideration of the merits. Id., slip op. at 4. At issue was the meaning of the "best scientific evidence available" standard.

 The court held that if the weight of authority suggests a certain figure is most likely, that figure should be adopted. Id. at 8. The court stated that "although the Court does not necessarily approve of decisions, based as this one was, on a lack of data, the Court cannot say that the choice was unreasonable, especially when the choice was supported by the overwhelming weight of scientific opinion." Id. at 10-11. It was pointed out that the "pervasive lack of empirical data underlying the variables . . . used in determining that the permit to take porpoise would not be to the disadvantage of the species is extremely troubling." Id. at 13.

 In 1982, Congress, for a second time, amended the North Pacific Fisheries Act to extend the Federation's permit through June 9, 1987. MMPA § 1034(b). These amendments also require the Federation to assist as requested in meeting the objectives of the research program agreed to by the U.S. and Japan and to provide appropriate funding to carry out a joint research program on Dall's porpoises. In April 1986 the parties to the INPFC, after extensive negotiations, adopted new measures intended to reduce further the incidental take of U.S. origin salmon by Japanese high seas mothership and landbased fisheries. The measures provide for a phasing out of the Japanese mothership fleet from various specified portions ...

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