MARI>fE MAMMAL COMMISSION — Annual Report for 1991 



determine that the affected population was within its 

 optimum sustainable population level and to establish 

 a quota for allowable takes. In addition, the plaintiffs 

 asserted that the Service, in violation of section 102(b) 

 of the Act, failed to obtain sufficient information from 

 the applicant to determine that the animals to be 

 imported were not pregnant at the time of taking, 

 nursing at the time of taking or less than eight months 

 old, or taken in a manner deemed inhumane by the 

 Secretary. 



Federal defendants also filed a motion for summary 

 judgment on 17 January 1990. In response to the 

 plaintiffs claims, the defendants maintained that: 

 section 101(a)(3)(A) applies only to waivers of the 

 Act's moratorium on taking and importing marine 

 mammals, and no certification of foreign consistency 

 is required for public display permits; a formal 

 determination of a stock's status relative to its opti- 

 mum sustainable population is not a prerequisite for 

 issuance of a public display permit; the Service 

 properly determined that permit issuance would not 

 adversely affect the wild false killer whale population, 

 since the requested animals were already being 

 maintained in captivity; and minimum size require- 

 ments and other conditions set forth in the permit 

 assured that young, unweaned animals, pregnant or 

 nursing females, and animals taken in an inhumane 

 manner would not be imported. 



Briefing of the case was completed in February 

 1990. The Shedd Aquarium has voluntarily agreed to 

 provide all parties to the litigation at least 30 days' 

 notice, should it decide to exercise its authority under 

 the permit to import the whales. At the end of 1991 

 the U.S. District Court had yet to schedule oral 

 argument in the case. 



Kama v. New England Aquarium 



Kama, a captive-bom bottlenose dolphin formerly 

 maintained at the New England Aquarium under a 

 public display permit, was transferred to the U.S. 

 Navy in 1987 under a letter of agreement issued by 

 the National Marine Fisheries Service. The Navy, 

 through a separate letter of agreement, was authorized 

 to maintain the dolphin under the terms and conditions 

 of its existing scientific research permit. 



On 14 June 1991, Citizens to End Animal Suffer- 

 ing and Exploitation (CEASE) and other groups filed 

 suit on behalf of Kama against the New England 

 Aquarium, the Department of Commerce, and the 

 Navy seeking to compel return of the dolphin to the 

 Aquarium. Plaintiffs alleged that transfers of marine 

 mammals between facilities could be authorized only 

 by permit and that the Service's practice of authoriz- 

 ing such transfers under letters of agreement violated 

 the Marine Manmial Protection Act. Similarly, 

 allegations were made that the Service improperly 

 authorized the taking and sale of beached and stranded 

 marine mammals under letters of agreement. In 

 addition, plaintiffs asserted that the Service had 

 violated the National Environmental Policy Act by 

 failing to analyze the impacts of authorizing the 

 taking, purchase, sale, and transport of marine mam- 

 mals under letters of agreement. 



Plaintiffs also claimed that the National Marine 

 Fisheries Service violated the Act by modifying 

 permits without prior public notice when the modifica- 

 tion would neither increase the number of marine 

 mammals authorized to be taken nor pose increased 

 risks to the animals. Based on this premise, plaintiffs 

 are also seeking to invalidate the Service's two-year 

 extension of a public display permit issued to the New 

 England Aquarium to coUea bottlenose dolphins. 



The New England Aquarium filed a counterclaim 

 on 17 September 1991, claiming abuse of process and 

 defamation by the plaintiffs. The Aquarium has 

 alleged that plaintiffs knew that its original claims 

 were without merit and waited too long to bring their 

 claims. It is seeking $3 million in damages for abuse 

 of process. The Aquarium has also charged that 

 plaintiffs have made false and defamatory statements 

 regarding the Aquarium and is seeking an additional 

 $2 million in damages. 



At the end of 1991, Federal defendants were 

 preparing a motion for summary judgment, which 

 they expected to file early in 1992. 



194 



