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Committee for Humane Legislation v. Richardson

Citation: 6 ELR 20500
No. No. 74-1465, 414 F. Supp. 297/8 ERC 2181/(D.D.C., 05/11/1976)

Fourteen plaintiffs and intervenors sue under the Marine Mammal Protection Act (MMPA) for a declaratory judgment and injunction against taking of porpoise incidental to tuna fishing. Defendant-intervenor American Tunaboat Association (ATA) is the holder of a general permit issued by defendant National Marine Fisheries Service (NMFS) for the taking of an unspecified number of porpoise. Construing the primary policy of MMPA to be the protection of marine mammals and not a balancing of equities including the economic impact of porpoise protection on the tuna fishing industry, the court rejects defendants' arguments that application of the "best feasible technology" for tuna fishing satisfies the requirements of the Act. The NMFS violated the statute's protection policy by issuing the general permit without requiring assurance that no disadvantage to porpoise populations would result. The agency failed to publish data on population dynamics and effects of incidental taking on the optimum sustainable population of dolphins, did not specify the number of dolphins allowed to be taken under the permit, and permitted an increasing rather than a decreasing number of animals to be taken. Nor did ATA meet its statutory burden to show its permit application to be consistent with the purposes of the Act. On cross-motions for summary judgment the court grants declaratory relief and in addition voids the NMFS permit regulations as contrary to law. Rejecting a compromise solution which would allow continued taking of declining quotas of dolphins, the court halts all incidental killing of dolphins until NMFS determines that such killing is not inconsistent with the intent of the Act.

Counsel for Plaintiff Committee for Humane Legislation, Inc.
Bernard Fensterwald
910 16th Street, NW
Washington DC 20005
(202) 223-1667

Counsel for Plaintiff-Intervenor Environmental Defense Fund
William A. Butler
1525 18th Street, NW
Washington DC 20036
(202) 833 1484

Counsel for Defendants
Nicholas S. Nadzo
Department of Justice
Washington DC 20530
(202) 739-3797

Counsel for Defendant-Intervenors American Tunaboat Association
William H. Allen
John A. Hodges
Covington & Burling
888 16th Street, NW
Washington DC 20036
(202) 452-6000