839 F.2d 795 (D.C. Cir. 1988), 87-5239, Kokechik Fishermen's Ass'n v. Secretary of Commerce

Docket Nº:87-5239 to 87-5243, 87-5248, 87-5249.
Citation:839 F.2d 795
Case Date:February 16, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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839 F.2d 795 (D.C. Cir. 1988)






Nos. 87-5239 to 87-5243, 87-5248, 87-5249.

United States Court of Appeals, District of Columbia Circuit

February 16, 1988

Argued Nov. 3, 1987.

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Anne S. Almy, Dept. of Justice, with whom Roger J. Marzulla, Acting Asst. Atty. Gen. and Edward J. Shawaker, Dept. of Justice, Washington, D.C., were on the brief for appellants, the Federal Government, in Nos. 87-5239, 87-5248 and 87-5249. Elizabeth Ann Peterson, Dept. of Justice, Washington, D.C., also entered an appearance for appellants, Federal Government.

John A. Hodges, Washington, D.C., for appellant, Federation of Japan Salmon Fisheries Co-op. Ass'n, in Nos. 87-5239, 87-5240, 87-5241, 87-5242 and 87-5243.

Donald C. Mitchell, Anchorage, Alaska, for appellees, Kokechik Fishermen's Association, et al., in Nos. 87-5239, 87-5248 and 87-5249.

Laurie J. Adams, for appellees, Center for Environmental Educ., et al., in Nos. 87-5239, 87-5240, 87-5241, 87-5242 and 87-5243. Howard Fox, Washington, D.C., also entered an appearance for appellees, Center for Environmental Educ., et al.

Before GINSBURG and STARR, Circuit Judges, and GESELL [*], District Judge.

Opinion for the Court filed by District Judge GESELL.

Dissenting opinion filed by Circuit Judge STARR.

GESELL, District Judge:

This case requires us to examine an aspect of this nation's announced policy to protect, in waters under its jurisdiction, marine mammal populations that are in danger of depletion or extinction.

Following formal rulemaking proceedings, the Secretary of Commerce issued a regulation 1 pursuant to the Marine Mammal Protection Act of 1972 ("MMPA"), 16 U.S.C. Secs. 1361-1407 (1982 & Supp. III 1985), authorizing a group of Japanese

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commercial fishermen known as the Federation of Japan Salmon Fisheries Cooperative Association ("Federation") to take a fixed number of Dall's porpoise incidental to commercial fishing for salmon in U.S. conservation waters. The permit application was opposed at the administrative level by environmentalists, the Center for Environmental Education, et al. ("CEE") and by a group of Alaskan commercial fishermen, Kokechik Fishermen's Association, et al. ("Kokechik"). As finally authorized on May 22, 1987 after several amendments, the permit failed to meet objections advanced during the rulemaking process by Kokechik and CEE, on one side, and the Federation on the other side.

Shortly after the Secretary's final decision, the Federation, Kokechik and CEE filed petitions for review of the permit in the U.S. District Court for the District of Columbia, as authorized by the statute. 16 U.S.C. Sec. 1374(d)(6). On June 10, 1987, the three cases were consolidated by the District Court and a hearing held on the motions for preliminary injunction filed by the three parties. After careful consideration, the District Court granted the motions of petitioners Kokechik and CEE on June 15, 1987, and thus preliminarily enjoined the Secretary of Commerce from issuing a permit to the Federation; the Federation's motion was thereupon dismissed as moot. Kokechik Fisherman's Ass'n, et al. v. Malcolm Baldrige, et al., 679 F.Supp. 37 (D.D.C.1987). Appellants Federation and Secretary of Commerce then filed a notice of appeal in this Court on June 25, 1987.

Because a question of pure statutory interpretation controls our review of the District Court's order, and its final resolution is essential, we turn immediately to this decisive issue. See NRDC v. Morton, 458 F.2d 827, 832 (D.C.Cir.1972). Perceiving the issue as the District Court preliminarily suggested it should be decided, we affirm and remand to the District Court only for such further proceedings consistent with this decision as may be required.


In 1952, the United States, Japan and Canada signed the International Convention for the High Seas Fisheries of the North Pacific Ocean ("INPFC"). 4 U.S.T. 380, T.I.A.S. No. 2786. Under this treaty, Japan agreed to refrain from fishing for salmon in certain areas of the North Pacific Ocean and in the Bering Sea. In 1978, the INPFC was renegotiated to bring the treaty in conformity with the recent adoption by the United States of a 200 mile Fisheries Conservation Zone, now known as the Exclusive Enterprise Zone ("EEZ"). 30 U.S.T. 1095, T.I.A.S. No. 9242. The protocol amending the treaty permitted the Japanese to fish for salmon inside the U.S. EEZ. Id. The North Pacific Fisheries Act of 1954 ("NPFA"), implementing the INPFC, was also amended in 1978 and exempted Japanese commercial salmon fishing from the strictures of the MMPA until June 9, 1981. 16 U.S.C. Sec. 1034(b) (1976 & Supp. II 1978). The NPFA further provided that after June 9, 1981 the restrictions of the MMPA would apply with full force and effect to Japanese salmon fishing within the EEZ. Id. Sec. 1034(c).

In 1981, the National Oceanic and Atmospheric Administration ("NOAA"), acting pursuant to section 1374 of the MMPA, issued the Federation a three year general permit allowing its members an annual take of 5,500 Dall's porpoise, 450 northern fur seals, and 25 northern sea lions incidental to their commercial salmon fishing. Takings of Marine Mammals Incidental to Commercial Fishing Operations, 46 Fed.Reg. 27,056 (1981). Congress then extended this permit in 1982 by amendments to the North Pacific Fisheries Act on the condition that further research be performed examining ways to reduce or avoid incidental takings of marine mammals during salmon gillnet fishing. 16 U.S.C. Sec. 1034(b) (1982). The permit was scheduled to expire on June 9, 1987 and without either Congressional extension of the permit or the issuance of a new general permit, the Federation's commercial salmon fishing within the U.S. EEZ would effectively cease at that time.

On July 21, 1986, the National Marine Fisheries Service ("NMFS"), a division of

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NOAA, received an application from the Federation for a five year general permit under the MMPA which essentially sought an extension of the previous permit's terms through June 9, 1992. As required by the MMPA, NMFS/NOAA published in the Federal Register a notice of receipt of the application, the proposed regulation based on the application and the scheduling of formal rulemaking hearings, along with the procedures to be used and issues to be examined at the hearings. Regulations Governing the Taking and Importing of Marine Mammals, 51 Fed.Reg. 29,674 (1986). In addition, included in the notice were statements required under section 103(d) of the MMPA concerning the status of each marine mammal stock affected and the effects of any permitted taking on its optimum sustainable population ("OSP"). 2 16 U.S.C. Sec. 1373(d). A Draft Environmental Impact Statement was also issued shortly thereafter by the Environmental Protection Agency. No statements were published relating to northern sea lions because only one had been reported taken since the general permit was issued in 1981 and the NMFS considered the probability of other incidental takings too remote to warrant its concern. In addition, it was noted that northern fur seals from the Pribilof Islands could not be included in the proposed permit regulation because of a separate agency action to list the stock as depleted, thereby precluding issuance of a taking permit under the MMPA. 3 Thus, the proposed regulation dealt solely with the incidental taking of Dall's porpoise. 4

On December 1-7, 1986, a formal rulemaking hearing on the permit request and proposed regulation was held before an Administrative Law Judge ("ALJ") of the United States Department of Commerce. After careful consideration of a voluminous record, the ALJ recommended issuance of a five year permit to the Federation allowing the incidental taking of 1,750 Dall's porpoise during 1987 with a 5% yearly reduction over the following four years, and 45 northern fur seals annually. 5 The decision to recommend the inclusion of northern fur seals was arrived at during the course of rulemaking when it was learned that the Federation was seeking permission to take northern fur seals from the Commander Island stock, not from the Pribilof Island stock which was thought to be depleted. 6 The ALJ also noted that sea lions, harbor porpoise, Pacific white-sided dolphin, northern right whale dolphin, and killer whales are incidentally, although infrequently, taken during salmon gillnet fishing and that the Federation had applied in its permit for the taking of northern sea lions. The ALJ concluded that since there was virtually no scientific data on the record concerning these species, either because the Federation had not applied for such takings in its permit or the NMFS had not included them in the Federal Register notice, 7 the Federation was prohibited from taking these species. 8

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8] In addition, the ALJ made findings and recommendations relating to the terms and conditions attaching to the permit and further research needs.

Pursuant to rulemaking procedures, the Secretary then reviewed the record developed during the formal hearings, the ALJ's recommended decision, the exceptions filed thereto, and the Final Environmental Impact Statement, and issued a final decision. The final rule provided for a general permit to be issued under the MMPA to the Federation allowing "an aggregate taking during the three year permit period of no more than 789 Dall's porpoise in the Bering Sea and 5,250 in the North Pacific Ocean, of which no more than 448 may be taken in the Bering Sea and no more than 2,494 may be taken from the North Pacific Ocean in any single calendar year." Regulations...

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