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Motor Vessel Theresa Ann v. Kreps

ELR Citation: 7 ELR 20458
Nos. No. 77-1401, 548 F.2d 1382/9 ERC 2072/(9th Cir., 02/24/1977) Injunction stayed

The court stays a preliminary injunction issued by the district court which conditionally allowed tuna fishermen to take porpoise incidental to their fishing, contrary to the Marine Mammal Protection Act (MMPA), until a 1977 permit was issued. The district court abused its discretion by enjoining the effect of the MMPA where the appellees had shown neither that they were likely to succeed on the merits nor that the balance of hardships tipped sharply in its favor. The economic hardship to the tuna industry is not so severe as to outweigh the public interest, as expressed in the MMPA, in protecting porpoise.

Counsel for Appellants
Peter R. Taft, Ass't Attorney General; Bruce Rashkow, Margaret Strand
Department of Justice
Room 2644, Washington DC 20530
(202) 739-2750

Counsel for Appellees
William M. Kammer
Gray, Cary, Ames & Frye
2100 Union Bank Bldg., San Diego CA 92101
(714) 236-1661

David Burney
Huntington, Bryan, Harper, Burney & Newman-Crawford
Suite 1100, Wells Fargo Bank Bldg., 1007 Fifth Ave., San Diego CA 92101
(714) 238-0011

Before DUNIWAY, SNEED, and KENNEDY, Circuit Judges.

KENNEDY, Circuit Judge, concurs in the result.