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 Alaskan subsis- 

 tence fishermen; the Center for Environmental Education, 

 representing numerous environmental organizations; and the 

 Federation. Kokechik and the Center alleged, among other 

 things, that the permit violated the Marine Mammal Protection 

 Act because it applied to only Dall's porpoise when it was 

 certain that other marine mammals would be taken incidentally. 

 The Federation claimed that the denial of the 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 issued its 

 decision in Federation of Japan Salmon Fisheries Cooperative 

 Association v. Baldriqe , and ruled in favor of Kokechik and 

 the Center. The Court preliminarily enjoined the permit and 

 held that Kokechik and the Center had demonstrated a substantial 

 likelihood of success on the merits of their claim that the 

 permit unlawfully allowed the taking of one species of marine 

 mammal, Dall's porpoise, even though it was known that other 

 species would be taken by the same fishing operations. The 

 Court denied the request of the National Marine Fisheries 

 Service and the Federation for a stay pending appeal. However, 

 the injunction was withheld for 20 days to allow the parties 

 to request a stay from the Court of Appeals. During this 

 time, the Federation continued its fishing operations. 



On 10 July 1987, the Federation requested a stay of the 

 injunction from the U.S. Court of Appeals for the District of 

 Columbia Circuit. The National Marine Fisheries Service 

 moved for expedited review and a stay on 13 July 1987, the 

 same day that the District Court's preliminary injunction 

 took effect. Both motions were denied on 16 July 1987. The 

 Federation voluntarily terminated its operations within the 

 U.S. Fishery Conservation Zone on 12 July 1987. 



The Federation and the Secretary of Commerce appealed 

 the District Court decision. On 16 February 1988, the U.S. 

 Court of Appeals for the District of Columbia Circuit issued 

 its decision in Kokechik Fishermen's Association v. Secretary 

 of Commerce and affirmed the District Court, with one judge 

 dissenting. In so holding, the Court stated that the Secretary 

 of Commerce has no authority to disregard incidental takings 

 of certain species or stocks, even if the impact is negligible, 

 in issuing a permit that authorizes the take of another species 

 or stock. On 11 May 1988, the Court denied the Federation's 



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