MARINE MAMMAL COMMISSION — Annual Report for 1991 



pose the import ban against tuna from that country. 

 Plaintiffs argued that, under the Court's 28 August 

 ruling, a foreign incidental mortality rate based on 

 1990 data must be no more than 1.25 times the U.S. 

 rate before the embargo could be lifted. Plaintiffs 

 also contended that Mexico's failure to meet the 

 eastern spinner quota for 1989 could be corrected only 

 by meeting the standard for the entirety of 1990. 



The Court issued a temporary restraining order on 

 4 October 1991, again prohibiting the importation of 

 Mexican tuna. That order was based on a determina- 

 tion that the Marine Mammal Protection Act does not 

 permit reconsideration of the eastern spinner finding 

 based on data for less than a full fishing season. The 

 Court also ruled that foreign fleets were not required 

 to achieve a mortality rate that is no more than 1.25 

 times the U.S. mortality rate until the end of 1990. 

 Thus, had it not been for the unacceptably high 

 mortality of eastern spinner dolphins in 1989, the 

 showing by Mexico that its mortality rate for the first 

 eight months of 1990 was less than twice the U.S. 

 rate for the same period would have been sufficient to 

 overcome the import ban. 



At defendants' request, the Court converted the 

 temporary restraining order to a preliminary injunc- 

 tion on 19 October 1990, clearing the way for an 

 immediate appeal. Federal defendants appealed the 

 District Court ruling to the U.S. Court of Appeals for 

 the Ninth Circuit on 22 October 1990, seeking expe- 

 dited review. On 14 November 1990, the Court of 

 Appeals granted the Government's motion to stay the 

 ban on tuna imports from Mexico pending resolution 

 of the appeal. Pursuant to that stay, the import 

 prohibition on Mexican tuna was lifted on 16 Novem- 

 ber 1990. Oral argument of the appeal was heard on 

 14 February 1991 and, five days later, the Court of 

 Appeals vacated its stay of the District Court's injunc- 

 tion, reimposing the embargo of Mexican tuna. 



The Court of Appeals issued its decision on 11 

 April 1991, affirming the lower Court's ruling. The 

 Court of Appeals, like the District Court, found the 

 statutory language to be clear. Contrary to the 

 Service's regulations, which allowed for reconsidera- 

 tion on data from part of a year, the statute required 

 findings with respect to eastern spinner and coastal 

 spotted dolphins to be based on a full year's data. 

 The Court also rejected the Service's policy-based 



argument that the reconsideration provision offers 

 foreign nations an incentive to speed up efforts to 

 comply with Marine Mammal Protection Act stan- 

 dards. The Court noted that, contrary to this conten- 

 tion, the reconsideration provision allowed nations to 

 continually exceed the Act's limits for part of each 

 year, yet never be subject to an import ban. The 

 Court illustrated this point by noting that Mexico, 

 which had exceeded Marine Mammal Protection Act 

 standards for the entirety of 1990, had been subject to 

 an embargo for less than one day. Further, the Court 

 found the Government's contention that it sought only 

 to provide additional incentives to further dolphin 

 protection was belied by the Service's record of non- 

 enforcement of the Act's provisions prior to enactment 

 of the 1988 amendments. 



On 15 February 1991, Earth Island Institute filed 

 another motion in the District Court seeking to enjoin 

 tuna imports from all foreign nations fishing in the 

 eastern tropical Pacific until the National Marine 

 Fisheries Service determined that those nations had 

 achieved a dolphin mortality rate no more than 1.25 

 times the U.S. rate by the end of 1990. Despite the 

 Court's earlier rulings, the Service, on 27 December 

 1990, had issued an interim rule giving tuna fishing 

 nations until 15 March 1991 to submit mortality data 

 for the 1990 fishing season and extending the 1989 

 comparability findings until 31 May 1991, by which 

 time new findings would have been issued. A hearing 

 on the motion was held on 18 March 1991. 



As expected, the Court ruled in plaintiffs favor 

 and, on 26 March 1991, ordered a prohibition on tuna 

 imports from each nation fishing in the eastern tropi- 

 cal Pacific until such time as the Service made a 

 positive finding that the nation has achieved an 

 average incidental taking rate that is no more than 

 1.25 times the U.S. rate for the same period or until 

 the Service determined that the government of the 

 exporting nation has taken sufficient steps to prohibit 

 its vessels from setting on porpoises in the course of 

 fishing for tuna. In accordance with this ruling, tuna 

 harvested by Venezuela and Vanuatu in the eastern 

 tropical Pacific, in addition to tuna harvested by 

 Mexico, which already had been embargoed, were 

 embargoed on 3 April 1991. 



On 8 August 1991, Earth Island Institute moved to 

 convert four preliminary injunctions into permanent 



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