Federal Courts and Congress Review Tuna-Porpoise Controversy

In the first extensive judicial interpretation of the Marine Mammal Protection Act of 1972,¹ federal district court Judge Charles R. Richey has found that the National Marine Fisheries Service violated the Act by allowing continued killing of porpoises incidental to tuna fishing operations.² The court also declared void regulations promulgated by the Service and a general permit issued to the American Tunaboat Association to allow taking of porpoise during tuna fishing.³

Judge Richey's decision in Committee for Humane Legislation, Inc. v. Richardson was, however, only the beginning. Nine days later, eleven days before the order was scheduled to take effect, congressional hearings began on H.R. 13865, a bill designed to overturn the decision by amending the Act, and so to keep the tuna fishermen in business. A few days later President Ford "climbed aboard a tuna boat" while on a campaign trip and promised to fight the decision.⁴

On June 2 the defendants argued to Judges Wright, Wilkey, and Robinson of the United States Court of Appeals for the D.C. Circuit that Judge Richey's stay of effectiveness should be extended beyond the original May 31 date. By oral order, the appellate court agreed, extended the temporary stay until further order of the court, and set a briefing schedule which extends through June 30.⁵

On Friday, June 11, 1976, National Marine Fisheries Service published an amendment to 50 C.F.R. § 216.24(d)(2)(i)(A) imposing a quota of 78,000 porpoises and promising to give 30 days notice prior to prohibiting taking. This amendment was suggested in a May 28 affidavit of Robert Schoning, Director of National Marine Fisheries Service. The Federal Register also notes that the Service intends "to increase the number of scientific observers on tuna purse seine vessels and to maintain the ongoing cooperative gear testing program…."⁶

The Act

The 1972 enactment of the Marine Mammal Protection Act changed the standards of wildlife management. For many years the dominant policy furthered maximum sustained yield (MSY), which required management of populations so as to maximize human use of the species. Productivity was maintained at the level necessary to support maximum annual harvests of animals. The Marine Mammal Protection Act gained some support from public revulsion at the unabated slaughter of marine mammals dictated by MSY and a growing recognition that marine mammals have "esthetic and recreational as well as economic [value]."⁷ The 1972 Act further set healthy animal populations as a prime goal and introduced a new conceptual framework for population dynamics.

The population policy of the Act seeks to maintain the "health and stability of the marine ecosystem"⁸ and within that ecosystem the "optimum sustainable population" (OSP)⁹ of a species or particular population stock. Both of the quoted phrases require an ecosystem approach. For example, the definition of OSP starts with "the number of animals which will result in the maximum productivity of the population or the species," but it goes on to require attention to "the optimum carrying capacity of the habitat and the health and stability of the ecosystem of which they [the animals] form a constituent element…." The definition of optimum carrying capacity¹⁰ complements this approach in turn by emphasizing the habitat that supports the population.

To achieve the goals of the population policy, the Act declares a moratorium on taking and importing marine mammals, but, recognizing that certain economic interests [6 ELR 10148] require continued taking of marine mammals, Congress vested authority in the Secretary to waive the moratorium and to issue taking permits, in specific situations and under carefully controlled conditions.¹¹ One such "special exception" allowed commercial fishermen a two-year grace period after enactment during which marine mammals could be taken incidental to fishing operations, subject to gear restrictions which will "reduce [the take] to the lowest practicable level."¹² After that period taking was to be allowed under permits issued by the Secretary according to the generally applicable produres in the Act.¹³

The substantive controls on the Secretary's decision to issue a permit are the Act's population policy described above and the specific "immediate goal that the incidental kill or incidental serious injury of marine mammals … be reduced to insignificant levels approaching a zero mortality or serious injury rate." The procedures incorporated into the Act require the National Marine Fisheries Service (NMFS) to publish data on optimum sustainable population and the effects of proposed taking on optimum sustainable population; place the burden of proof on the applicant;¹⁴ and state that "the Secretary … must be assured" that the proposal complies with the conservation policy of the Act.¹⁵ To further this policy, the Secretary is empowered to impose regulations "necessary and appropriate to insure that such taking will not be to the disadvantage of the species…."¹⁶

The Decision

Judge Richey's decision raises for the first time a number of issues that go to the heart of this regulatory scheme. First, the judge plumbed the overall thrust and structure of the Act, and examined the performance of the National Marine Fisheries Service under the Act, first in the general area of developing regulations and then in terms of its specific actions on the tuna industry's permit application. Related to the propriety of the National Marine Fisheries Service issuance of a permit was the question of whether the private applicant, American Tunaboat Association, had met its burden of proof under the statute. Finally, the judge had to fashion a remedy suitable under the circumstances.

Judge Richey began with a careful exposition on the Act itself. He found in it a comprehensive program designed to protect and enhance the condition of marine mammals by means of a population policy, the central provision of which is a moratorium on taking and importing such animals, and a scientific management program that will supply information needed to support the requirements of the Act.

Although Judge Richey did not treat the scientific aspects in as much detail as he did the policy orientation of the Act, he recognized the "scientific management program" as one of "two alternative approaches to averting [the] danger [of extinction or depletion of marine mammals]."¹⁷ In two respects scientific support is central to the tuna-porpoise question. First, one justification for the two-year grace period allowing takings was to provide the time needed to further improve fishing techniques so as to reduce incidental taking of porpoises.¹⁸ The Act also provided two million dollars for gear research during those two years.¹⁹ Second, scientific research is necessary to meet the Act's requirements to give notice about optimum sustainable population levels and the effects of taking on those levels as well as to determine the meaning of "health and stability of the marine ecosystem."

After explaining the language of the Act, Judge Richey was able to dispose quickly of the defendant's arguments that balancing the equities of zero porpoise mortality against the economics of the tuna industry is necessary to implement the Act,²⁰ and even that a "best feasible technology standard" is proper under the Act. His finding that the primary purpose of the Act is to protect marine mammals specifically negated this line of reasoning.

In proposing regulations to govern incidental taking in 1974 and 1975, the National Marine Fisheries Service had listed estimated population levels rather than optimum sustainable population levels for several marine mammal species. Despite the clear command of the Act, the Service stated unequivocally that "[o]ptimum sustainable population levels have not been determined; therefore, no statement can be made as to the effect of the proposed action [the regulations allowing taking] on optimum sustainable populations."²¹ Judge Richey held such blatant disregard for the clear language of the statute unacceptable and commented further that good faith does not mitigate this non-compliance.

The Legislative Reaction

The legislative response to Judge Richey's decision was very swift. Hearings were scheduled to begin exactly one week after the decision, but drafting and introduction problems forced a postponement of two days. H.R. 13865, the bill which emerged from the hearings, would add a grandfather clause to the incidental taking exception to the moratorium. This would have the effect of extending the permits issued pursuant to regulations of December 5 and 19, 1975, through the end of 1976.²² After that time taking would become subject to constraints in the bill which depend on whether the stock is at the optimum sustainable population. If the population is at or above OSP, taking would be allowed under the present constraints.²³ If below OSP, the bill would require that the taking be "(i) accomplished through the use of the best practicable technology [6 ELR 10149] available; and (ii) … not prevent the achievement of the optimum sustainable population levels; (iii) if the optimum sustainable population level of a population stock cannot be reasonably estimated [taking should] not significantly diminish the existing population levels."²⁴ These constraints have the administrative advantage of being manageable, but they weaken the interest of protecting marine mammals by inserting words like "practicable," "reasonably," and "significantly." The first and third constraint directly overrule Judge Richey's decis on. The third constraint would replace the requirement of "best scientific evidence" with a "reasonable" estimate" of OSP or, if that proves difficult to achieve, with not diminishing existing population levels. This change compromises requirements of population policy in favor of an acceptance of what is now technologically possible. It may be argued that, although the 1972 Act employed new terms and modified old concepts, Congress provided the necessary funding authority to explore these ideas and make them workable.²⁵ By phrasing the issue on which the amendments are decided as whether the tuna industry will survive the economic impact of the incidental taking regulations, Congress reverts to the purely economic pre-1972 stance and sacrifices its previous leadership in representing marine mammal interests. Although an old saw describes politics as the art of the possible, the possible is sometimes not enough. Such a decision is implicit in the 1972 enactment.

The bill has one noteworthy provision: tuna fishermen who obtain permits would be required to allow observers on boats of more than 400 tons and to bear their expense.²⁶ Observers have in the past been a valuable source of scientific data and have provided estimates of the practicability of new technological requirements. In the past, however, the observer program has not achieved complete coverage, so statistical samplings have not been reliable as the "best scientific evidence."

The flurry of legislative activity on the tuna-porpoise question also implies that either the tuna industry's preenactment promises²⁷ of forthcoming effective technology were faulty, or that since enactment not enough has been done to solve incidental taking problems. As a result of this failure, fear has grown that the tuna fleet will migrate to foreign flags in order to be able to compete with foreign fishermen not subject to American standards.²⁸

Congressman Paul McCloskey voiced the criticism several times during hearings that, although the law had been in effect nearly four years, the first request for a major amendment arose just a few days after a court decision, unfavorable to the tuna industry, that interpreted the Act as saying clearly what Congress intended. Such hurried legislative activity, in the view of the Congressman, denies Congress the opportunity for careful deliberation.²⁹

The decision of Judge Richey, if upheld, will force the federal government to reassess the Marine Mammal Protection Act's role in wildlife protection. The assumption that tuna fishing must be permitted even if incidental taking occurs in thrown into question by the decision. A stringent requirement that the government not act without scientific information to support its action and that the government require applicants to bear the burden of proof in obtaining permits replaces the previous practice of making do with inadequate information from all parties.

Judge Richey's decision lays a strong, well-reasoned foundation for interpreting the Marine Mammal Protection Act. It has the strength of being clear and of supporting, but not replacing, statutory language by recourse to legislative history. The court of appeals will have difficulty overturning such a logical decision, so changes in marine mammal protection policy seem now to be left to congressional action.

1. 16 U.S.C. §§ 1361 et seq., ELR 41815 (1972).

2. Committee for Humane Legislation, Inc. v. Richardson, 6 ELR 20500 (D.D.C. May 11, 1976).

3. 50 C.F.R. part 216, 40 Fed. Reg. 56899 (Dec. 12, 1975). Permit at 40 Fed. Reg. 59766 (Dec. 31, 1975).

4. See Environmentalist is Critical of Ford on Tuna Dispute, New York Times, May 26, 1976.

5. Richardson v. Committee for Humane Legislation, Inc., No. 76-1479 (D.C. Cir. 1976), argued before Wright, Wilkey, and Robinson, JJ. Appellants' brief was due June 14; Appellees' brief, June 25; Reply brief, June 30.

6. 40 Fed. Reg. 23680 (June 11, 1976).

7. 16 U.S.C. § 1361(6), ELR 41815.

8. Id.

9. 16 U.S.C. § 1362(8), ELR 41816.

10. 16 U.S.C. § 1362(8), ELR 41816.

11. 16 U.S.C. § 1371, ELR 41816.

12. 16 U.S.C. § 1371(a)(2), ELR 41816.

13. 16 U.S.C. § 1371(a)(3)(A), ELR 41816.

14. 16 U.S.C. § 1373(d)(1)-(4), ELR 41818.

15. 16 U.S.C. § 1371(a)(3)(A), ELR 41816.

16. 16 U.S.C. § 1373(a), ELR 41817.

17. 6 ELR 20501.

18. Id. at 20501.

19. 16 U.S.C. § 1381(a), ELR 41820:1.

20. 6 ELR at 20505. The "balancing" language is derived from remarks on the House floor by Congressman Goodling. 118 Cong. Rec. 34643 (1972).

21. 40 Fed. Reg. 41536 (Sept. 8, 1975).

22. H.R. 13865, 94th Cong., 2d Sess., § 1 (1976).

23. Id. § 2.

24. Id. This language would amend 16 U.S.C. § 1381(b), ELR 41820:1.

25. Judge Richey cited passages from legislative history for the proposition that Congress knew it had assigned a difficult task. The concept of action-forcing legislation is not new. See Bonine, The Evolution of "Technology-Forcing" in the Clean Air Act, BNA Environment Reporter Monograph No. 21 (1975); Texas v. EPA, 499 F.2d 289, 4 ELR 20744 (5th Cir. 1974).

26. H.R. 13865, supra note 22, § 2, amending 16 U.S.C. § 1381(c), ELR 41820:1. On Friday, June 11, NMFS published an amendment to 50 C.F.R. § 216.24(d)(2)(i)(A) imposing a quota of 78,000 porpoises and promising to give 30 days notice prior to prohibiting taking. This amendment was suggested in a May 28 affidavit of Rovert Schoning, Director of NMFS. The Federal Register also notes that the Service intends "to increase the number of scientific observers on tuna purse seine vessels and to maintain the ongoing cooperative gear testing program…." 41 Fed. Reg. 23680 (June 11, 1976).

27. 41 Fed. Reg. 23680 (June 11, 1976).

28. This effect was identified in a newspaper story. See Hudson, Five Tunaboats File Transfers of Registration, San Pedro (Calif.) News-Pilot, Oct. 1, 1975. The change to a foreign flag is not easy to achieve, since it requires review by the United States Maritime Administration and the State Department. The fact that foreign fishermen are still subject to looser regulation, however, suggests that American attempts to influence other nations, for example, through the Inter-American Tropical Tuna Commission, have been ineffective. See 16 U.S.C. § 1381(c), ELR 41820:1.

29. Hearings on H.R. 13865 Before the Fish and Wildlife Subcomm. of the House Merchant Marine and Fisheries Comm., 94th Cong., 2d Sess. (1976).