ELR Citation: ELR 20985
No(s). 92-10044 (9th Cir. Sep 27, 1993)

The court holds that the Marine Mammal Protection Act (MMPA) and the regulations implementing it do not make it a crime to take reasonable steps to deter porpoises from eating fish or bait off a fisherman's line. Defendant was convicted of "taking" a marine mammal in violation of MMPA §102(a)(2)(A) after he fired rifle shots behind porpoises that were eating tuna on his fishing lines. The court first holds that two substantial errors infected the proceedings before the magistrate judge and the district court: Both the magistrate judge and the district court employed the incorrect regulatory definition of the charged crime, and the district court's affirmance of the magistrate judge's decision rested, in part, on the erroneous belief that negligent acts are criminally punishable under the MMPA. Because a clear factual record exists from which to review the defendant's conviction, the court determines whether sufficient evidence exists to convict him of the "knowing taking" of a marine mammal in violation of the Act. Noting the government's contention that the defendant committed a criminal "taking" by "harassing" the porpoises, the court holds that "harassment" under the Act entails direct and significant intrusion on the normal, life-sustaining activities of a marine mammal. The statute groups "harass" with "hunt," "capture," and "kill" as forms of prohibited "taking." The latter three each involve direct and significant intrusions. This interpretation of "harass" comports with the common understanding of "take," as well as the congressional concern in passing the Act and the National Marine Fisheries Service's (NMFS') definition of "take" at 50 C.F.R. §216.3. Also, 50 C.F.R. §17.3, although not containing the controlling definition of "harass," requires significant disruption of normal behavioral patterns. Moreover, interpreting the Act and regulations to prohibit isolated interference with abnormal marine mammal activity would lead to absurdity.

Applying this interpretation to the act for which defendant was convicted, the court holds that insufficient evidence exists to find a criminal taking by harassment. Defendant did not fire at the porpoises or hit them. He simply fired two successive shots behind and outside the area of the porpoises to discourage them from eating bait and hooked tuna from his fishing lines—an act that is not a part of the porpoise's normal eating habits. The court notes that its holding is supported by an NMFS amendment to the definition of "take" that includes "feeding" as an example of harassment. The amendment was intended to deter precisely the kind of porpoise behavior that defendant attempted to deter. Also, allowing porpoises to feed on bait may constitute prohibited harassment by "feeding."

Counsel for Plaintiff
Edward H. Kubo Jr., Ass't U.S. Attorney
U.S. Attorney's Office
300 Ala Moana Blvd., Honolulu HI 96813
(808) 541-2850

Counsel for Defendant
Alexander Silvert, Ass't Federal Public Defender
Federal Public Defender's Office
Prince Kuhio Federal Bldg., Rm. 7102, Honolulu HI 96813
(808) 541-2521

Before Browning and Norris, JJ.