Committee for Humane Legislation, Inc. v. Richardson, s. 76-1479
| Citation | 540 F.2d 1141 |
| Decision Date | 06 August 1976 |
| Docket Number | Nos. 76-1479,s. 76-1479 |
| Parties | , 176 U.S.App.D.C. 362, 6 Envtl. L. Rep. 20,661 COMMITTEE FOR HUMANE LEGISLATION, INC., et al., v. Elliot L. RICHARDSON, Secretary of Commerce, U.S. Department of Commerce, et al.; American Tunaboat Association and Tuna Research Foundation, Appellants. FUND FOR ANIMALS et al. v. Elliot L. RICHARDSON, Secretary of Commerce, et al.; American Tunaboat Association and Tuna Research Foundation, Appellants. COMMITTEE FOR HUMANE LEGISLATION, INC., et al., v. Elliot L. RICHARDSON, Secretary of Commerce, U.S. Department of Commerce, et al.; Fishermen's Union of America, Pacific and Caribbean Area, and Local 33, United Cannery and Industrial Workers of the Pacific, Appellants. COMMITTEE FOR HUMANE LEGISLATION, INC., et al., v. Elliot L. RICHARDSON, Secretary of Commerce, U.S. Department of Commerce, et al., Appellants, American Tunaboat Association et al., Intervenors. FUND FOR ANIMALS et al., v. Elliot L. RICHARDSON, Secretary of Commerce, et al., Appellants, American Tunaboat Association et al., Intervenors. thru 76-1483. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
William H. Allen, Washington, D.C., was on the brief for appellants American Tunaboat Ass'n and Tuna Research Foundation.
Patrick C. O'Donoghue, Washington, D.C., was on the brief for appellants Fishermen's Union of America and United Cannery and Industrial Workers.
Peter R. Taft, Asst. Atty. Gen., and Edmund B. Clark and Robert A. Kerry, Attys., Dept. of Justice, Washington, D.C., were on the briefs for the federal appellants-appellees.
William A. Butler and John F. Hellegers, Washington, D.C., were on the brief for appellee Environmental Defense Fund, Inc.
Bernard Fensterwald, Jr., Washington, D.C., was on the brief for appellees Fund for Animals et al.
Ronald A. Zumbrun and Raymond M. Momboisse, Sacramento, Cal., and John H. Midlen, Jr. and Glen E. Davis, Washington, D.C., were on the brief for Pacific Legal Foundation as amicus curiae.
Murdaugh Stuart Madden, Washington, D.C., was on the brief for Humane Society of the U.S. as amicus curiae.
Before WRIGHT, ROBINSON, and WILKEY, Circuit Judges.
I. INTRODUCTION
In this appeal we are asked to review a judgment of the District Court 1 that the Secretary of Commerce, through the Director of the National Marine Fisheries Service (NMFS), has violated the provisions of the Marine Mammal Protection Act of 1972 2 by granting to the American Tunaboat Association a general permit for the practice of purse-seine fishing for yellowfin tuna "on porpoise." We concur with the conclusion of the District Court that the permit for fishing "on porpoise" was not issued in compliance with the requirements of the Act. Rather than order an immediate halt to operations of the tuna fleet, however, we have determined to stay the effect of the District Court order until January 1, 1977, for reasons stated hereinafter.
II. BACKGROUND
Prior to 1960 the most common method of fishing for yellowfin tuna was use of pole, line, and live bait. In the eastern tropical Pacific yellowfin tuna fishery, fishermen observed in the late 1950's that yellowfin habitually associate with certain species of dolphin (commonly called porpoise), and began setting their nets "on porpoise." When porpoise are spotted at the ocean surface, speedboats are deployed to herd them to where the net will be set. The tuna follow below the porpoise. The porpoise then are encircled with a cup-like purse-seine net, the open bottom of which is then drawn closed in the manner of a drawstring purse, 3 trapping both the porpoise and the tuna beneath.
Although efforts are made to free the trapped porpoise, 4 purse-seine fishing has resulted in substantial incidental deaths of porpoise. Porpoise are air-breathing mammals, and may be suffocated if they become entangled in the net, or drowned as a result of shock or physical injury. The number of incidental porpoise deaths in recent years has been as follows: 5
The average number of porpoise killed each time purse-seine nets are "set" was 70 in 1971, 43 in 1972, 19 in 1973, 12 in 1974, and 17 in 1975. SWFC Report at 87, Table 2.
The effectiveness of purse-seine fishing has led to dramatic increases in its use by the United States tuna fishing fleet. The catch of yellowfin tuna caught by United States purse-seiners on porpoise was 99,000 tons in 1974, or 60 percent of the total United States yellowfin catch (of 165,000 tons) and about 43 percent of the total United States tuna catch. For the period 1971-1974 purse-seiners fishing on porpoise accounted for 72 percent of the total catch of yellowfin. FEIS at 40.
The Marine Mammal Protection Act of 1972 was addressed in part to the growing problem of porpoise deaths incidental to commercial fishing. The Act was founded on a concern that certain species of marine mammals were in danger of extinction or depletion as a result of man's activities, 6 and a concomitant belief that those species "should not be permitted to diminish below their optimum sustainable population." 7 A moratorium was imposed on taking and importation of all marine mammals, 8 with a two-year exemption from the moratorium for taking of marine mammals incidental to the course of commercial fishing operations. 9 Although the Secretary of Commerce was permitted to license incidental taking of marine mammals subsequent to the two-year exemption, the statute directs that "(i)n any event it shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate." 10
The permits to be issued after the exemption period expired on October 21, 1974 were authorized under 16 U.S.C. § 1374, which in turn required compliance with regulations issued under Section 1373. Section 1374 requires that the permit specify, inter alia, "the number and kind of animals which are authorized to be taken or imported," and the location, period, and method of the authorized taking. Section 1374(b)(2), (c). The applicant for a permit "must demonstrate to the Secretary that the taking or importation of any marine mammal under such permit will be consistent with the purposes of this chapter and the applicable regulations established under section 1373 of this title." 11 Section 1374(d)(3) (emphasis added).
Section 1373, in turn, authorizes the Secretary to promulgate regulations "on the basis of the best scientific evidence available" for permits for taking marine mammals, "as he deems necessary and appropriate to insure that such taking will not be to the disadvantage of those species and population stocks and will be consistent with the purposes and policies set forth in section 1361 of this title." 12 The Act requires that prior to promulgating any such regulations
the Secretary shall publish and make available to the public either before or concurrent with the publication of notice in the Federal Register of his intention to prescribe regulations under this section
(1) a statement of the estimated existing levels of the species and population
stocks of the marine mammal concerned;
(2) a statement of the expected impact of the proposed regulations on the optimum sustainable population of such species or population stock;
(3) a statement describing the evidence before the Secretary upon which he proposes to base such regulations; and
(4) any studies made by or for the Secretary or any recommendations made by or for the Secretary or the Marine Mammal Commission which relate to the establishment of such regulations.
16 U.S.C. § 1373(d).
On March 13, 1974 NMFS published notice of its intent to prescribe regulations for taking porpoise incidental to commercial fishing. 39 Fed.Reg. 9685. It took this action despite its professed lack of knowledge as to the actual populations of porpoise, the optimum sustainable populations, or the effect of the takings on the optimum sustainable populations of porpoise. 13 Final regulations 14 were promulgated on September 5, 1974, 39 Fed.Reg. 32117, and the American Tunaboat Association was granted a general permit 15 for the period October 21, 1974 to December 31, 1975 under which fishermen holding certificates of inclusion in the general permit were permitted to take an unlimited number of porpoise. 16
Despite subsequent warnings by the Marine Mammal Commission 17 that the levels of incidental porpoise deaths would remain unacceptably high, 18 NMFS did not impose a quota, although it later amended its regulations to require improved gear and techniques. 19 The number of porpoise killed by commercial fishermen increased from 97,800 in 1974 to about 130,000 in 1975. 20
The American Tunaboat Association's application for renewal of its permit 21 was granted on December 19, 1975. 22 Although NMFS published population estimates for two species of porpoise, it again stated that it could not make any statement as to the optimum sustainable populations or the effect of the proposed taking, 23 and determined to set no quota as to incidental deaths unless it appeared that the total number of deaths would exceed 70 percent of the final 1975 estimate. 24 Although the Marine Mammal Commission again warned that there was no basis for assurance that porpoise stocks would not be harmed by the taking, 25 NMFS expressed its belief in proposing regulations that existing porpoise populations would neither increase nor decrease as a result of the taking. 26
Appellees, various environmental protection organizations, filed suit in 1974 and 1975 to challenge the legality of the permits issued the American Tunaboat Association. The suits were consolidated, and on May 11, 1976 the District Court entered summary...
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