ELR Citation: ELR 20924
No(s). C-91-083 (S.D. Tex. Sep 30, 1992)

The court holds that a National Marine Fisheries Service (NMFS) regulation promulgated under the Marine Mammal Protection Act (MMPA) construing the definition of a prohibited "taking" to include the "feeding" of dolphins in the wild is unenforceable. The operators of a dolphin feeding tour boat seek protection from enforcement and judicial review of the NMFS regulation. The court finds that Congress has spoken as to the meaning of "harass" and that Congress' intent as to construction is unambiguous leaving no policy choice to the agency. The court finds that even if Congress' intent is ambiguous, the secretary's construction is arbitrary, capricious, or manifestly contrary to the statute because the statute contains no indication that Congress intended to prohibit the feeding of dolphins in the wild. The court finds that there is not adequate scientific evidence in the record to support the regulation. The court finds that even if the secretary's definition of "taking" is correct, the agency has abused its discretion and acted arbitrarily in denying a display permit to the plaintiffs because the agency policy to deny all public display permit requests for feeding dolphins without review is actually a rule which has not been lawfully promulgated.

Counsel for Plaintiff
Les Cassidy
Woolsey & Cassidy
1000 CCNB Ctr., N.
500 N. Water St., Corpus Christi TX 78471
(512) 886-3200

Counsel for Defendant
Larry Ludka, Ass't U.S. Attorney
U.S. Attorney's Office
Wilson Plaza, W. Tower, Rm. 1200, Corpus Christi TX 78476
(512) 884-3454