the environmental organizations filed objections and argued 

 that the permit could not lawfully be issued because, among 

 other problems, it was certain that animals from species and 

 stocks not covered by the permit would be taken incidental to 

 the Federation's operations. 



The final decision of the Under Secretary of Commerce 

 and the general permit were issued on 22 May 1987. The final 

 decision was published in the Federal Register on 28 May 

 1987. The permit was issued for three years and established 

 an aggregate three-year quota of no more than 789 Dall's 

 porpoise from the Bering Sea stock and no more than 5,250 

 porpoise from the North Pacific Ocean stock. During any 

 calendar year, no more than 448 animals could be taken in the 

 Bering Sea and no more than 2,494 from the North Pacific 

 Ocean. The request to take fur seals and sea lions was denied 

 on the grounds that the Federation had failed to meet its 

 burden of proof to demonstrate that the affected stocks were 

 within their optimum sustainable population levels and that 

 the projected levels of take would not be to the disadvantage 

 of those stocks. The permit was subject to numerous condi- 

 tions, including requirements for observer coverage and gear 

 modifications. Under the permit, the Federation began fishing 

 within the U.S. Fishery Conservation Zone on 12 June 1987. 



Litigation 



Shortly after the final decision, lawsuits were filed in 

 the U.S. District Court for the District of Columbia by the 

 Kokechik Fishermen's Association, representing Alaska subsis- 

 tence fishermen; the Center for Environmental Education, 

 representing numerous environmental organizations; and the 

 Federation. Kokechik and the Center alleged that the permit 

 violated the Marine Mammal Protection Act because it covered 

 only Dall's porpoise when it is certain that other marine 

 mammals would be taken incidentally. They also alleged vio- 

 lations of the Act on other grounds, as well as violations of 

 the National Environmental Policy Act and the Administrative 

 Procedure Act. The Federation claimed that the denial of its 

 request to take fur seals was improper, that it was unlawful 

 to require the placement of U.S. observers on Japanese vessels 

 outside U.S. waters, and that the quota levels were improper. 

 Subsequently, the Federation voluntarily dismissed its causes 

 of action on the observer coverage and the quota. 



On 15 June 1987, the U.S. District Court ruled in favor 

 of Kokechik and the Center. The Court preliminarily enjoined 

 the permit and held that Kokechik and the Center had demon- 

 strated a substantial likelihood of success on the merits of 

 their claim that the permit unlawfully allowed the taking of 

 one species of marine mammals, Dall's porpoise, even though 

 it was known that other species would be taken by the same 



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