ELR Citation: ELR 20360
No(s). C89-498C (W.D. Wash. Nov 3, 1989)

The court holds that the Navy must prepare an environmental impact statement before taking dolphins from the wild for military use. Environmental and animal rights groups filed suit under the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA), challenging Marine Mammal Protection Act permits allowing the Navy to take Atlantic bottlenose dolphins from the wild; a Department of Commerce letter concurring in the plan; and the Navy's decision to use the dolphins at a base. The court holds that the Navy's decision to take the dolphins from the wild and use them at its base requires an analysis of the effects on the dolphins. This analysis must consider the "reverse impact" of the taking, including the effects on reproduction and social structure of the dolphins' captive and wild populations before and after the Navy removes dolphins from the wild. Further, compliance with NEPA and the APA would force consideration of using dolphins indigenous to cooler waters. The court holds that Commerce's concurrence letter is an affirmative federal action, without which the Navy cannot go forward in its decision to take dolphins from the wild for military use. The Navy must therefore comply with NEPA's requirement for review of affirmative federal action and analysis of potential environmental effects.

Counsel for Plaintiffs
John T. Costo
1500 Washington Bldg., Seattle WA 98101
(206) 325-7825

Counsel for Defendants
Robert M. Taylor, U.S. Attorney
3600 Sea-First Plaza Bldg., 800 Fifth Ave., Seattle WA 98104
(206) 442-7970

Kenton W. Fulton
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000