Fund for Animals v. Kreps

No. 76-2168 (D.C. Cir. March 8, 1977)

The court stays the lower court's order halting tuna purse-seining and allows tuna fishermen to take porpoise pursuant to their 1976 quotas and permits until April 30, 1977 or until 1977 permits are issued. All porpoise taken during this interim period are to be counted as part of the total catch allowed for 1977.

Counsel for Appellants
Peter R. Taft, Bruce C. Rashkow, Margaret Strand
Department of Justice
Washington DC 20530
(202) 739-2750

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

Wright, Robinson, and Wilkey, C.J.

[7 ELR 20456]

Per curiam:

Order

Upon consideration of the Government's renewed motion for emergency relief, and of the memoranda and oral argument in support of and in opposition to the motion,

It appearing to the Court that the Secretary of Commerce, purportedly in compliance with the Marine Mammal Protection Act, has made findings pursuant to 16 U.S.C. § 1373(d) (Supp. V 1975); has established a quota of 9,972 on the taking of porpoise incidental to yellowfin tuna purse seining during the period from January 1 to April 30, 1977; has adopted new regulations establishing a [7 ELR 20457] quota of 59,050 for the calendar year 1977 and other requirements governing the taking of porpoise incidental to yellowfin tuna purse seining; and has conditionally modified in 1976 permit issued to the American Tunaboat Association to extend its term through April 30, 1977;

It is, upon application of the criteria specified in Virginia Petroleum Jobbers Association v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921 (1958), to the situation now existing,

ORDERED by the Court that the judgment of the District Court in Civil Action Nos. 74-1465 and 75-0227 be and hereby is stayed to allow the taking of porpoise incidental to yellowfin tuna purse seining pursuant to the 1976 permit, as modified, from the date of this order to and including April 30, 1977, or until a permit for 1977 is issued, whichever occurs first. Taking of porpoise pursuant to the modified permit shall be governed by the 1977 regulations, except as to term of permits and quota of porpoise, and may commence upon issuance of modified certificates of inclusion. Any and all porpoise taken under the modified permit shall be counted as a part of the total allowable take for 1977.