Strong v. United States

No. 92-7807 (5 F.3d 905, 38 ERC 1039) (5th Cir. October 19, 1993)

The court vacates a district court order that permanently enjoined enforcement of a National Marine Fisheries Service (NMFS) regulation promulgated under the Marine Mammal Protection Act that defines the feeding of marine mammals in the wild as a prohibited "taking," because feeding the marine mammals could disturb their normal behavior. The court holds that the NMFS promulgated the regulation within its authority, because it is reasonable for the NMFS to restrict or prohibit the feeding of dolphins as a potential hazard to them. Although "to feed" is not among the dictionary definitions of "harass" as it relates to a prohibited taking, the term "disturb" is synonymous with "harass," and there is substantial evidence that feeding wild dolphins disturbs their normal behavior.

[The lower court's decision is published at 23 ELR 20924. Appellate briefs in this action are digested at ELR PEND. LIT. 66264.]

Counsel for Plaintiffs
Les Cassidy
CCNB Ctr. N.
500 N. Water St., Corpus Christi TX 78471
(512) 887-2965

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

Before POLITZ, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit Judges.

[24 ELR 20141]

PER CURIAM:

Erv and Sonja Strong conduct a commercial tourboat business to transport tourists into the bay by boat for the purpose of feeding dolphins. By this suit the Strongs have challenged the validity of a rule promulgated under the Marine Mammal Protection Act by the Secretary of Commerce which defines the feeding of marine mammals in the wild as prohibited activity. The district court permanently enjoined enforcement of the regulation. 811 F. Supp. 246. We uphold the regulation and vacate the injunction.

By this statute, Title 16 U.S.C. § 1361 et seq., Congress has prohibited the taking of marine mammals without a permit. The term "take" is defined to mean "to harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill any marine mammal." § 1362(12). Congress has directed the Secretary to promulgate regulations with respect to taking and importing of each species of marine mammal. § 1373. Pursuant to that authorization the National Marine Fisheries Service in the Department of Commerce sought the opinions of informed experts on the effect of feeding dolphins, finally concluding that harm was a real possibility and that habitual feeding cruises should be restricted as harassment of the mammal.

The appeal before us does not contest the denial of a permit to conduct feeding cruises. The position of the Strongs is that the Secretary of Commerce has no authority to consider feeding to be a form of harassment or to regulate same. We think the contention asked too much, and that the district court's order infringes upon the authority of the Secretary.

Under Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), we review the district court's decision de novo. We must effectuate Congress' choice if Congress has "directly spoken to the precise question" at issue. Id. at 841-43, 104 S. Ct. at 2781-82. If Congress did not speak to the precise question, we must respect the agency's interpretation of its governing statute if its interpretation is "reasonable." Id. at 843-44, 104 S. Ct. at 2782-83.

Here, the precise question addressed by the challenged regulation is whether feeding marine mammals in the wild constitutes a "take." 50 C.F.R. 216.3. The district court rejected the decision of the agency because "to feed" is not among the dictionary definitions of "harass." But "disturb" is synonymous with "harass" and the agency has been given substantial scientific evidence that feeding wild dolphins disturbs their normal behavior and may make them less able to search for food on their own. It is therefore clearly reasonable to restrict or prohibit the feeding of dolphins as a potential hazard to them. The regulation was promulgated by the agency within its authority.

The district court held that the National Marine Fishery Service had improperly established a rule without following rulemaking procedures by issuing a policy statement which required the return without consideration of any application for a public display permit to feed marine mammals in the wild. This holding is not challenged by the United States, and we agree. The judgment only enjoins the enforcement of the regulation, and that is vacated.

VACATED.