Chapter VII — Marine Mammal Management in Alaska 



applicable law and, in combination with tour boat 

 operations, may be having adverse effects on hump- 

 back whales and other cetaceans. As discussed in 

 Chapter H, the Park Service recognized that it had not 

 properly authorized commercial fishing operations in 

 the Park and, by Federal Register notice of 5 August 

 1991, proposed regulations authorizing certain fishing 

 activities in Park waters through 1997. 



Parties to this lawsuit met early in 1991 to try to 

 negotiate a settlement in the case. Pending comple- 

 tion of those efforts, the parties, with judicial consent, 

 have stayed further proceedings in the matter. 



United States v. F/V Distant Water — As discussed 

 in the Pacific walrus section in Chapter H, the Nation- 

 al Marine Fisheries Service, in 1989, adopted a two- 

 year seasonal fishery closure around Cape Peirce, 

 Round Island, and the Twins Islands under the Mag- 

 nuson Fishery Conservation and Management Act. 

 On 25 June 1991, the defendant fishing vessel was 

 found fishing within the closed area surrounding 

 Round Island. Further investigation revealed that the 

 vessel also had violated the closure regulations on two 

 earlier occasions. Subsequently, the National Oceanic 

 and Atmospheric Administration filed a complaint 

 seeking forfeiture of the vessel and its catch. 



On 12 August 1991, the defendant filed a motion 

 for summary judgment or, alternatively, to dismiss the 

 complaint. In support of its motion, the defendant 

 argued that the regulations establishing the closure 

 were beyond the scope of the Magnuson Act and were 

 therefore invalid. Specifically, the defendant contend- 

 ed that, while the Magnuson Act authorized the 

 regulation of fisheries for the conservation and man- 

 agement of fishery resources, marine mammals were 

 expressly excluded from coverage under the Act. 

 They further asserted that the Marine Mammal 

 Protection Act provided the exclusive mechanism for 

 regulating the taking of marine mammals incidental to 

 commercial fisheries. Inasmuch as the challenged 

 regulations were promulgated solely to protect walrus- 

 es and not fishery resources and had not been issued 

 pursuant to the Marine Manunal Protection Act, they 

 should, defendant claimed, be found to be invalid. 



Federal prosecutors responded that the regulations 

 were a proper exercise of the Service's authority 



under the Magnuson Act. As evidence of Congres- 

 sional intent to allow regulation of fisheries for 

 purposes other than managing fishery resources, 

 prosecutors pointed to the Act's definition of the term 

 "conservation and management" which includes those 

 measures "required to rebuild, restore, or main- 

 tain... any fishery resource and the marine environ- 

 ment... and... designed to assure that... irreversible or 

 long-term adverse effects on fishery resources and the 

 marine environment will be avoidexl. . . . " Similarly, 

 the Magnuson Act's allowance for consideration of 

 any relevant "economic, social, or ecological factor" 

 when determining optimum yield was cited as evi- 

 dence that the scope of the Act went beyond fishery 

 resources. Prosecutors also pointed to section 

 114(g)(3) of the Marine Mammal Protection Act, 

 which directs the Secretary of Commerce to request 

 that the Fishery Management Councils established 

 under the Magnuson Act take actions necessary to 

 mitigate adverse impacts to marine mammals from 

 fisheries under certain circumstances, to support the 

 view that regulation of fisheries to protect marine 

 mammals or other, non-fishery resources is appropri- 

 ate. Moreover, section 1 14(g)(3) specifically includes 

 adjustments to requirements with respect to fishing 

 times and areas as possible actions that might be taken 

 by the Councils to protect marine mammals. 



At the end of 1991, briefing of the case had been 

 completed and a bond hearing and a hearing on the 

 merits had been scheduled for early in 1992. 



Trustees for Alaska v. Lujan — Trustees for Alaska 

 filed suit on 8 August 1990 seeking to halt oil and gas 

 exploration activities being conducted in the Chukchi 

 Sea, alleging that unauthorized takings of walruses 

 had and would continue to occur. This lawsuit, 

 originally filed with the Ninth Circuit Court of 

 Appeals, was transferred to the District Court for the 

 District of Alaska after the appellate court ruled that 

 it did not have original jurisdiction of the matter under 

 the Outer Continental Shelf Lands Act, as plaintiffs 

 had argued. 



On 19 February 1991, Trustees for Alaska refiled 

 the case in the District Court. Plaintiffs' complaint 

 alleged that exploratory drilling activities authorized 

 by tiie Minerals Management Service were likely to 

 take walruses in violation of the Marine Mammal 



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