Chapter HI — Marine Mammal-Fisheries Interactions 



of coastal spotted dolphins exceeded 2 percent, of the 

 nation's total incidental take. 



On 22 June 1990, plaintiffs filed a motion for a 

 preliminary injunction, asking the District Court to 

 enjoin tuna imports from those foreign nations whose 

 vessels purse seine for tuna in the eastern tropical 

 Pacific until such time as the required mortality rate 

 findings had been made by the National Marine 

 Fisheries Service. Plaintiffs argued that, as of 1 

 January 1990, only tuna fi-om countries whose dolphin 

 kill rate was no more than twice that of the U.S. fleet 

 and whose take of eastern spinner and coastal spotted 

 dolphins during 1989 did not exceed the established 

 quotas could be imported. The National Marine 

 Fisheries Service contended that the comparability 

 findings must be based on data from the entire 1989 

 fishing season and therefore could not be made until 

 after 31 July 1990, when data from all 1989 trips 

 were available and had been analyzed. 



On 28 August 1990, the Court issued a preliminary 

 injunction partially granting and partially denying 

 Earth Island Institute's motion. The Court ruled that 

 the 1988 amendments to the Marine Mammal Protec- 

 tion Act clearly prohibited, as of the end of 1989, a 

 positive comparability finding, and tuna imports 

 pursuant to such a finding, for any nation whose 

 vessels had an average incidental take rate that ex- 

 ceeded 2.0 times that of U.S. vessels. The Court 

 therefore ordered the Secretary of the Treasury to 

 embargo yellowfin tuna harvested in the eastern 

 tropical Pacific Ocean by foreign fishermen until the 

 required determinations had been made. The Court's 

 opinion indicated that the Act does not require the 

 comparison between foreign and U.S. dolphin mortali- 

 ty rates to be based upon data for an entire calendar 

 year, but merely for "the same period." Thus, while 

 the Service could have based its mortality rate com- 

 parisons on data for the entirety of 1989, it could also 

 have made findings based upon data fi-om the first six 

 or eight months of that year. 



In contrast to the ruling regarding total dolphin 

 mortality rates, the Court ruled that findings based on 

 the take of eastern spiimer and coastal spotted dol- 

 phins by foreign fleets must be based on data fi"om an 

 entire fishing year although they need not be made by 

 the end of a fishing season. As such, the Court left 

 intact the Service's regulations that gave foreign 



nations until 3 1 July to provide stock-specific data for 

 the preceding fishing year. The Court cautioned, 

 however, that, once the necessary reports are filed, 

 the Service should make prompt decisions as to 

 whether the eastern spinner dolphin and coastal 

 spotted dolphin limits have been exceeded. 



As required by the Court, the U.S. Customs 

 Service, on 6 September 1990, prohibited imports of 

 yellowfin tuna and yellowfin tuna products into the 

 United States unless a declaration that the fish were 

 not caught using purse seine nets in the eastern 

 tropical Pacific was provided. The embargo applied 

 to tuna imports from the five nations fishing for tuna 

 in the eastern tropical Pacific: Mexico, Venezuela, 

 Vanuatu, Panama, and Ecuador. The following day, 

 however, the National Marine Fisheries Service 

 completed its review of the 1989 dolphin mortality 

 data submitted by Venezuela, Vanuatu, and Mexico 

 and, based on those data, issued positive comparabili- 

 ty findings for Venezuela and Vanuatu. The embargo 

 of tuna from these two countries was immediately 

 lifted. Data submitted by Mexico revealed a 1989 

 dolphin mortality rate that was 2.39 times that of the 

 U.S. fleet. In addition, eastern spinner dolphins 

 accounted for approximately 24 percent of the Mexi- 

 can fleet's 1989 incidental mortality. Thus, Mexico 

 failed to meet either the mortality rate comparability 

 test or the eastern spinner quota. 



Anticipating that its program would not be found 

 comparable based on 1989 data, Mexico also submit- 

 ted data for the first eight months of 1990, seeking 

 reconsideration of the finding based on the more 

 recent performance of its fleet. Based on the partial 

 1990 data, which indicated a mortality rate that was 

 1.58 times the U.S. rate and an acceptable reduction 

 in the percentage of eastern spinner dolphins taken, 

 the National Marine Fisheries Service also issued a 

 positive finding of comparability for Mexico on 7 

 September 1990. A positive finding was made for 

 Ecuador on 1 1 September, based upon its enactment 

 of legislation banning its nationals from fishing for 

 tuna by setting on dolphins. This left Panama as the 

 only nation affected by the Court-imposed tuna 

 embargo. 



In response to the Service's finding of comparabili- 

 ty for Mexico, Earth Island Institute, on 17 September 

 1990, sought a temporary restraining order to reim- 



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