ELR Citation: ELR 20141
No(s). 92-7807 (5th Cir. Oct 29, 1993)

The court vacates a district court order that permanently enjoined enforcement of a National Marine Fisheries Service (NMFS) regulation promulgated under the Marine Mammal Protection Act that defines the feeding of marine mammals in the wild as a prohibited "taking," because feeding the marine mammals could disturb their normal behavior. The court holds that NMFS promulgated the regulation within its authority, because it is reasonable for NMFS to restrict or prohibit the feeding of dolphins as a potential hazard to them. Although "to feed" is not among the dictionary definitions of "harass" as it relates to a prohibited taking, the term "disturb" is synonymous with "harass," and there is substantial evidence that feeding wild dolphins disturbs their normal behavior.

[The lower court's decision is published at 23 ELR 20924. Appellate briefs in this action are digested at ELR PEND. LIT. 66264.]

Counsel for Plaintiffs
Les Cassidy
CCNB Ctr. N.
500 N. Water St., Corpus Christi TX 78471
(512) 887-2965

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

Before POLITZ, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit Judges.