Chapter X — Permits for Marine Mammals 



The Service issued a final rule on 20 March 1991 

 to amend die definition of die term "take" to include 

 feeding or attempting to feed marine manmials in the 

 wild. As promulgated, the rule applies to feeding all 

 wild marine mammals under the jurisdiction of the 

 National Marine Fisheries Service, not only dolphins. 

 The rule also defined "feeding" to mean "offering, 

 giving or attempting to give food or non-food items to 

 marine mammals in the wild... including operating a 

 vessel or providing other platforms from which 

 feeding is conducted or supported." Feeding does 

 not include the routine discard of bycatch during 

 fishing operations or the otherwise legal, routine 

 discharge of waste or fish by-products from fish 

 processing plants. The Fish and Wildlife Service has 

 not adopted comparable feeding regulations for species 

 under its jurisdiction. 



On 19 April 1991, the effective date of the new 

 regulatory definitions, the tour operators who had 

 requested authority to conduct a dolphin-feeding 

 program under a scientific research permit filed suit 

 in the U.S. District Court for the Southern District of 

 Texas {Strong v. United States) seeking eidier to 

 invalidate the new regulations or to compel issuance 

 of a permit. Plaintiffs argued Uiat broadening the 

 regulatory definition of "take" to include feeding 

 marine mammals was inconsistent with the statutory 

 definition of the term, that the rule was arbitrary and 

 capricious because there is no scientific evidence that 

 feeding dolphins actually harms the animals, and that 

 the Service acted arbitrarily by applying the feeding 

 prohibition to them but not to commercial fishermen. 



The court issued a temporary restraining order on 

 19 April 1991, enjoining enforcement of the ban on 

 feeding wild marine mammals, but only as it pertains 

 to the plaintiffs. In issuing the order, the court 

 expressed doubt that the Marine Mammal Protection 

 Act's prohibition on taking can be read to ban dolphin 

 feeding and noted that the plaintifFs dolphin-feeding 

 cruises are probably harmless to the dolphins, but are 

 valuable to people. The temporary restraining order 

 was extended pending a hearing on the merits of the 

 case. 



The Federal defendants filed a motion for summary 

 judgment on 5 June 1991, arguing, among odier 

 diings, that marine mammal feeding constitutes a form 



of harassment, is likely to alter marine mammal 

 behavior, and poses significant risks to the animals. 

 Plaintiffs filed a cross-motion for summary judgment 

 on 18 June 1991. A hearing on the matter was held 

 in Corpus Christi, Texas, on 19 December 1991 and 

 a decision on the matter is expected in 1992. 



Other Litigation 



The Marine Mammal Protection Act allows both 

 permit applicants and those opposed to issuance of a 

 permit to seek judicial review of the terms and condi- 

 tions of any permit issued under section 104 of the 

 Act or of the denial of such a permit. In recent years, 

 permit-related litigation has increased. In addition to 

 Strong V. United States, the dolphin-feeding case 

 discussed above, the following cases were pending at 

 die end of 1991. 



Animal Protection Institute v. Mosbacher 



On 28 April 1989, the National Marine Fisheries 

 Service issued a public display permit to the John G. 

 Shedd Aquarium authorizing the importation of up to 

 six false killer whales (Pseudorca crassidens) already 

 held captive in Japan. The Sierra Club Legal Defense 

 Fund, on behalf of the Animal Protection Institute and 

 otiier environmental and animal welfare groups, filed 

 suit on 12 June 1989 challenging issuance of that 

 permit. The plaintiffs suit challenges some of the 

 Service's basic interpretations of the Marine Mammal 

 Protection Act with respect to public display permits. 

 The Shedd Aquarium and the American Association of 

 Zoological Parks and Aquariums filed for and, on 1 1 

 September 1989, were granted intervener status in die 

 case. 



In a motion for summary judgment filed on 17 

 January 1990, plaintiffs alleged diat issuance of die 

 permit violated section 101(a)(3)(A) of die Marine 

 Mammal Protection Act because the Service had not 

 certified that the program for taking marme mammals 

 in Japan is consistent with the provisions and policies 

 of the Marine Mammal Protection Act. Plaintiffs also 

 contended that, before a public display permit could 

 properly be issued, die Service was required, dirough 

 the formal rulemakmg procedures of section 103, to 



193 



