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Motor Vessel Theresa Ann v. Richardson

ELR Citation: 7 ELR 20588
Nos. Nos. 76-963-E, -971-E, 9 ERC 1726/(S.D. Cal., 01/21/1977) Injunction issued

The court temporarily enjoins enforcement of the Marine Mammal Protection Act with respect to the American tuna fleet because a 1977 permit allowing the incidental taking of porpoises while fishing for tuna has not been issued. The court also denies plaintiffs' motion for summary judgment to declare the Act unconstitutional. Notwithstanding the importance of the preservation of marine mammals, some quota will be imposed for 1977, and plaintiff tuna fishermen will suffer irreparable injury if they are not soon allowed to commence fishing "on porpoise." Plaintiffs' quota in this relief is limited to a pro rata distribution of one proposed quota for the entire year, and porpoise taken at this time must be credited against the ultimately-established quota. The 1976 government observer program for tunaboats shall be reinstituted. Although the court does not decide whether plaintiffs have a property right in tuna, plaintiffs do have a property interest, by reason of the permit, in the "opportunity to carry on their livelihood."

Counsel for Plaintiffs
Rudi M Brewster, William N. Kammer, Richard A. Paul
Gray, Cary, Ames & Frye
2100 Union Bank Bldg., San Diego CA 92101
(714) 236-1661

Counsel for Defendants
Peter W. Bowie, Ass't U.S. Attorney
U.S. Courthouse, Annex A, 325 West F St., San Diego CA 92101
(714) 293-5690

Martin B. Hochman, Regional Counsel
National Oceanic & Atmospheric Administration
300 S. Ferry St., Room 2417, Terminal Island CA 90731
(213) 796-2756

Counsel for Amicus Curiae: American Tunaboat Association
David G. Burney
Suite 1100, Wells Fargo Bldg., 1007 Fifth Ave., San Diego CA 92101
(714) 238-0011