ELR Citation: ELR 20560
No(s). C88-1380 (N.D. Cal. Jan 27, 1994)

The court enjoins commercial fishers' incidental taking of northeastern offshore spotted dolphin while using purse seine nets to catch yellowfin tuna in the eastern tropical Pacific Ocean because the Marine Mammal Protection Act (MMPA) and the general permit under which the fishers operate prohibit the incidental taking of a depleted species. The court first holds that the 1980 American Tunaboat Association (ATA) permit issued by the Secretary of Commerce for domestic commercial tuna fishers prohibited the taking of depleted marine mammal species or stocks in the eastern tropical Pacific Ocean. MMPA §101(a)(3)(B) forbids the Secretary from issuing any permit for the taking of depleted species, except for scientific research. The 1980 ATA permit was necessarily subject to this explicit restriction. Moreover, the federal regulations referenced by the ATA permit, and which provide authority for that permit, make it clear that the permit did not allow the taking of dolphins belonging to a depleted species or stock. The court further notes that the 1980 ATA permit's ban on taking depleted dolphin species or stock is consistent with congressional intent. The current ATA permit is a congressional extension of the 1980 permit, subject to additional conditions provided by Congress that are designed to enhance the protection of dolphins. None of the additional conditions state that killing depleted species in the eastern tropical Pacific is permissible. Thus, the court holds that the Secretary may not, consistent with the MMPA or congressional intent, allow the ATA to continue killing northern offshore dolphins, given their depleted status.

The court next holds that banning the taking of depleted species under a commercial fishing permit is not barred by the MMPA because §101(a)(3)(B), which relates to the taking of depleted species, applies to commercial fishing under §101(a) (2) by way of MMPA §104(h)(1). In addition, at the time the ATA permit was issued, the Secretary interpreted these sections to allow the prohibition. The congressional extension of the ATA permit and the legislative history do not indicate an intent to change the prohibition against taking deplleted dolphin species or stocks. In a footnote, the court finds that there is no support for the assertion that §104(h)(3)(B), which provides that the Secretary shall take all necessary action if he finds that the incidental taking of a marine mammal is having a significant adverse effect on the stock, is the exclusive avenue for the Secretary to act with respect to the ATA general permit. The court holds that even if there were some ambiguity regarding the permissibility of taking depleted species under the ATA permit, construing the ATA permit to preclude the taking of depleted species is more consistent with the language of the MMPA and congressional intent. The court holds that the current agency view that §104(h)(3)(B) does not apply to commercial fishing permits issued under §104(h)(2) is not entitled to deference because it is not grounded in regulations, rulings, or administrative practice; it is reflected only in the arguments made in the context of this litigation.

The court next holds that the ATA permit and the MMPA do not require a ban on the incidental taking of species or stock that are not listed as depleted, such as the western/southern offshore spotted dolphin. The fact that the western/southern offshore spotted dolphin may be depleted does not provide adequate legal grounds to support the relief requested. The northeastern and western/southern offshore spotted dolphins have a similar outward appearance, however, and to fully effectuate the relief granted with respect to the northeastern offshore spotted dolphin, the court orders the parties to confer about ways to minimize the taking of northeastern offshore spotted dolphins in the boundary area between the two stocks, such as by creating a buffer zone. The court holds that the ATA is not entitled to the opportunity to administratively challenge the depletion listing before any action affecting its permit is taken. Section 104(h)(2)(B)(iii)(II) allows the Secretary to amend the ATA permit based on the best scientific information available, without making any reference to a hearing. The ATA had the opportunity to participate in the agency's decision to list the northeastern offshore spotted dolphin as depleted and may challenge the final determination under §104(d)(6). Moreover, §104(e)'s provision entitling the defendant to notice and a hearing does not apply because here, it is simply a matter of implementing statutory directives to which the permit is already subject, rather than the Secretary's initiation of regulatory action. Furthermore, §104(h)(3)(B)'s provision for notice and a hearing is not triggered because the Secretary has not made a finding of significant adverse impact and the Secretary is not proceeding on §104(h)(3).

[Previous decisions in this litigation are published at 21 ELR 20259 and 20843, 22 ELR 20990, and 24 ELR 21263.]

Counsel for Plaintiffs
Joshua R. Floum, Deborah A. Sivas
Heller, Ehrman, White & McAuliffe
333 Bush St., San Francisco CA 94104
(415) 772-6000

Counsel for Defendants
Charles R. Shockey
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000