There are two grounds upon which petitioners challenge the permits in both cases. First, petitioners assert that § 1371(a)(3)(A) prohibits the Secretary from issuing permits for the importation of the belugas and false killer whales without first certifying that the capturing country's program for "taking" marine mammals is consistent with that established by the MMPA. Second, petitioners contend that the Secretary was required by § 1373(a) to ascertain the OSP of both the false killer whales and the belugas prior to issuing the permits. Respondents take the position that neither § 1371(a)(3)(A) nor § 1373(a) apply at all to establish conditions precedent to the issuance of "public display" permits under § 1371(a)(1).
As is apparent, the express statutory language affords no answer to either question. The legislative history is unenlightening. None of the passages from case authority construing the MMPA represents a definitive holding on the precise issues presented.
And the canons of statutory construction are of no help.
What emerges somewhat more clearly from all of the above is Congress' general concern about protecting marine mammals from human depredations, so far as domestic U.S. law can reduce such perils, and to that end it enacted an absolute moratorium on their taking and importation, in contemplation of a comprehensive scheme to regulate activities potentially or actually detrimental to them to be formulated in due course by the Secretary. As a general proposition, it can be said that any significant taking or importation of marine mammals following passage of the Act was to occur, if at all, strictly in accordance with the Secretary's regulations.
At the same time, it does appear that Congress also contemplated that there would be a limited number of instances in which an inconsequential quantity of animals could be taken or imported for beneficent purposes, such as for scientific research, stock preservation, or, as here, for public display. Consequently, in § 1371(a)(1) it gave the Secretary authority to grant a modest dispensation in such cases from the most onerous constraints of the MMPA - the absolute moratorium - without awaiting the outcome of more elaborate administrative proceedings the regulations might require for more destructive assaults upon the population of a species.
Even as to those minimal takings, however, § 1371(a)(1) does not allow indiscriminate or at-will seizures of marine mammals; permits are required, to be issued at the presumably well-intentioned discretion of the Secretary with specified conditions, and only upon the concurrence of other knowledgeable sources of official advice.
It is unnecessary, for the purposes of these cases, to determine what additional formalities might be required by § 1371(a)(3)(A) to attend the issuance of the permits allowed under that section. The permits in the Whales Cases derive from authority conferred upon the Secretary by § 1371(a)(1). Thus it cannot be said that the Secretary's actions were "not in accordance with law," and the inquiry turns to whether the Secretary's action in issuing the permits can be faulted as being arbitrary and capricious, measured against the underlying purpose of the MMPA, viz., "to provide marine mammals . . . with necessary and extensive protection against man's activities."
See Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984).
There are two reasons why the Secretary's grant of a permit in the API Case for the importation of the false killer whales reflects no abuse of discretion. First, the record is now clear that the only whales to be imported under the permit will be pseudorcas already in captivity,
and their removal from the current inventory of Japanese oceanaria to the United States will thus have no direct effect on the wild population. Second, the administrative record discloses that information was before the Secretary at the time to the effect that false killer whales are neither "threatened" nor "endangered" under the ESA, nor have they been declared "depleted" under the MMPA.
Similarly, the administrative record in the IWC Case reflects a decision that appears rationally supported. The Shedd import permit application indicates that the four beluga whales it seeks to import "would be taken from . . . waters of the western Hudson Bay."
To assess the likely impact of such an action, the National Oceanic and Atmospheric Administration ("NOAA") prepared an Environmental Assessment on Shedd's application. In support of NOAA's conclusion that the "information presently available [with respect to beluga stock size] is sufficient on which to base a decision to issue" the permit,
NOAA cited two studies on belugas.
These studies were provided to the Department of Commerce on September 5, 1991,
and each of them independently estimates a "Western Hudson Bay Beluga" stock size of approximately 23,000 individual belugas. No evidence is shown to the contrary.
In sum, it appears that even after Shedd exercises its permits and imports the whales it wants, free-swimming pseudorcas and belugas will still be found in the ocean in abundance.
In a final effort to invalidate the permit in the API Case alone, petitioners assert that the Secretary did not comply with § 1372(b), the relevant text of which reads
(b) Except pursuant to a permit for scientific research, or for enhancing the survival or recovery of a species or stock . . . it is unlawful to import into the United States any marine mammal if such mammal was -
(1) pregnant at the time of taking;
(2) nursing at the time of taking, or less than eight months old, whichever occurs later;
. . .
(4) taken in a manner deemed inhumane by the Secretary.
An examination of that text together with the remainder of the statute discloses nothing to suggest the Congress intended to impose upon the Secretary herself an affirmative duty to assure that the particular animals the applicant proposes to import are not in a parenting way before issuing a license. Indeed, the permit issued by the Secretary states explicitly that "the holder shall neither take nor import any mammal which is pregnant, a lactating female, or is an unweaned young mammal."
The permit also declares that "all marine mammals must be taken in a humane manner. . . . Any inhumane taking shall subject the Holder to the penalties of the [MMPA], including revocation of the permit."
For the foregoing reasons, therefore, it is, this 31st day of July, 1992,
ORDERED, that the petitioners' motion for summary judgment in the case of Animal Protection Institute, et al., v. Mosbacher, C.A. 89-1696, is denied; and it is
FURTHER ORDERED, that the motions of the federal respondents and each of the intervenor-respondents for summary judgment in the case of Animal Protection Institute, et al., v. Mosbacher, C.A. 89-1696, are granted; and it is
FURTHER ORDERED, that the petitioners' motion for summary judgment in the case of International Wildlife Coalition, et al., v. Franklin, C.A. 92-0223, is denied; and it is
FURTHER ORDERED, that the motions of the federal respondents and the intervenor-respondent for summary judgment in the case of International Wildlife Coalition, et al., v. Franklin, C.A. 92-0223, are granted; and it is
FURTHER ORDERED, that Civil Action Nos. 89-1696 and 92-0223 are dismissed with prejudice.
Thomas Penfield Jackson
U.S. District Judge