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Kokechik Fishermen's Ass'n v. Secretary of Commerce

ELR Citation: 18 ELR 20622
Nos. No. 87-5239, 839 F.2d 795/(D.C. Cir., 02/16/1988)

The court holds that the Secretary of Commerce violated the Marine Mammal Protection Act (MMPA) in issuing a permit to take a fixed number of Dall's porpoises incidental to commercial salmon fishing, since the incidental taking of other marine mammals not included in the permit was a virtual certainty. The Secretary had renewed the permit to take Dall's porpoises to a Japanese commercial fishing association conducting gillnet salmon fishing in United States waters, after determining that an incidental take permit could not be issued for northern fur seals because there was insufficient information to ascertain fur seal population levels. The court rules that the MMPA does not allow the Secretary to issue a permit allowing the incidental taking of one protected marine mammal species knowing that other protected marine mammal species will be taken as well. The incidental taking of fur seals during the gillnetting process is not merely a remote possibility but a certainty, as evidenced by the fishing association's request that it be allowed to take 450 seals annually. The issuance of the permit despite the Secretary's failure to make the required population findings essentially allows the association to take protected marine mammals for the price of the civil penalties imposed for such takings, a result that clearly contravenes the MMPA's moratorium on the taking of marine mammals. Moreover, Congress provided a specific exception for the tuna industry in the 1982 MMPA amendments, which also reauthorized the period in question here, yet provided no such exception for Japanese salmon fishing.

A dissent concludes that although Congress did not address the precise issue before the court, the construction given the MMPA by the National Oceanic and Atmospheric Administration is reasonable, since the statute creates a species-based permit system and is based on a compromise between the protection of marine mammals and the viability of commercial fishing operations.

Counsel for Appellees
Donald C. Mitchell
1552 Orca St.
Anchorage AK 99501
(907) 276-1969

Counsel for Appellant
Anne S. Almy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4427

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