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American Tunaboat Ass'n v. Brown

ELR Citation: 26 ELR 20076
Nos. No. 94-16275, 67 F.3d 1404/41 ERC 1762/(9th Cir., 10/10/1995)

The court upholds the National Marine Fisheries Service's (NMFS') calculation of the number of dolphins that an association of tuna fishers may take in 1994 under a Marine Mammal Protection Act (MMPA) general permit allowing its members to take a limited number of dolphins when using the purse seine method of harvesting tuna. On February 7, 1994, NMFS issued a notice of fishery closure setting the association's 1994 dolphin mortality quota at 114, because by that date, the association's 1994 take of 107 dolphins threatened to surpass its 1993 quota of 115. The court first holds that the association's appeal of the district court's denial of its application for a preliminary injunction is moot. The court cannot grant any relief to the association, because the NMFS directive, which closed the association's fisheries from February 8, 1994, to December 31, 1994, was only in effect during 1994, which has passed. The court next holds that the association's appeal of the district court's grant of summary judgment in favor of the NMFS on the quota issue is not moot, however. The NMFS calculation of the association's 1994 quota, if upheld, will serve as the base by which quotas for upcoming years will be calculated.

The court next rejects the association's claim that because MMPA §306(a)(1) (the designated quota provision) explicitly provides that for the period from January 1, 1993, until March 1, 1994, total dolphin mortalities shall not exceed 800, the association had not reached its allowable quota on the day NMFS issued the notice of closure. A plain reading of §306(a), which is part of the International Dolphin Conservation Act (IDCA), indicates that Congress intended: (1) to impose on the association a ceiling of 800 dolphin takes from January 1, 1993, to March 1, 1994 (the designated quota provision); (2) to establish a global moratorium to prohibit certain tuna harvesting practices by March 1, 1994; and (3) if no global moratorium occurred, to prohibit the number of dolphin mortalities for each year after 1992 from exceeding the number of mortalities that occurred in the preceding year (the annual reduction provision). Because it was widely recognized by December 1993 that no global moratorium would occur by March 1, 1994, it was reasonably certain that §306(a)(4)((A) (the annual reduction provision) would take effect on March 1, 1994. And even though Congress may not have intended for the annual reduction provision to take effect until March 1, 1994, the alarming rate of the association's dolphin mortality in the first few weeks of 1994 threatened to surpass the rate for the entire year of 1993. As such, the annual reduction provision would have been rendered null had the NMFS waited until March 1, 1994, to issue the notice of closure. The court holds that Congress clearly did not intend for such a situation to occur. The court also holds that enforcing the annual reduction provision before March 1, 1994, would not undermine the purpose of the designated quota provision. The designated quota provision is only a ceiling on the number of dolphin mortalities, not an absolute entitlement. Also, as the statutory scheme shows, Congress enacted the designated quota provision with the express expectation that it would be replaced either by a global moratorium or by the annual reduction provision. The court thus holds that the NMFS interpretation of the annual reduction provision and the designated quota provision effectuates the underlying purposes of the two provisions and the overriding purpose of the IDCA to eliminate dolphin mortalities by the year 1999. As such, it qualifies as a permissible construction.

The court next rejects the association's contention that §306(a)(4)(A)'s requirement that dolphin mortalities for each year after 1992 may not exceed the number of mortalities that occurred during the preceding year means the 10-month period from March 1, 1994, to December 31, 1994. The court holds that the provision plainly refers to calendar years. Nowhere does Congress indicate that the phrase could also mean a 10-month period within 1994. Also, all other uses of the term "year" in the IDCA refer to calendar years. Moreover, with one exception, courts have construed the term "year" or "current year," when used as a method of identifying a particular 12-month period, to mean a calendar year—the period beginning January 1 and ending December 31. The court also rejects the association's argument that for the year 1994, the term "preceding year" in §306(a)(4)(A) refers to the period from March 1, 1993, to February 28, 1994, and that the dolphin mortalities that occurred during this 12-month period should be the base quota by which the March 1, 1994, to December 31, 1994, quota should be calculated. Because Congress clearly intended the term "year" to mean a calendar year, the term "preceding year" must also mean a calendar year.

Finally, the court affirms the district court's holding that although the association would probably succeed on the merits of its claim that NMFS failed to follow a requirement that it publish in the Federal Register the date of an ordered closure at least seven days before the closure's effective date, the association failed to show the likelihood of irreparable injury.

Counsel for Plaintiffs
August J. Felando
One Tuna La., San Diego CA 92101
(619) 233-6405

Counsel for Defendants
M. Alice Thurston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Fletcher, Pregerson and Rymer, JJ.