Chapter XI — Permits for Marine Mammals 



tutes a take, the Service was free to adopt a regulatory 

 interpretation of the term, provided its interpretation 

 is "reasonable." The court found the rulemaking 

 record to contain substantial scientific evidence that 

 feeding wild dolphins disturbs their normal behavior 

 and may make them less able to search for their own 

 food. The court therefore concluded that it was 

 "clearly reasonable [for the Service] to restrict or 

 prohibit the feeding of dolphins as a potential hazard 

 to them. " 



The 1994 amendments to the Marine Mammal 

 Protection Act included a statutory definition of the 

 term "harassment." Harassment is defined as any act 

 of pursuit, torment or annoyance that has the potential 

 to injure or to disturb a marine mammal or marine 

 mammal stock in the wild by disrupting behavior pat- 

 terns, including but not limited to, migration, breath- 

 ing, nursing, breeding, feeding, or sheltering. 



On 29 August 1995 the plaintiff in the earlier case 

 again filed suit challenging the Service's regulation 

 against feeding wild marine mammals (also Strong v. 

 United States). The plaintiff claimed that the statutory 

 definition of harassment adopted in 1994 supersedes 

 the previous regulatory definitions, which had prohib- 

 ited the feeding of wild dolphins. The plaintiff did 

 not ask the court to find that dolphin-feeding does not 

 constitute harassment and is therefore permissible 

 under the Act. Rather, he sought a ruling that dol- 

 phin-feeding per se is not a violation of the Act. The 

 practical significance of such a ruling would be to 

 require the National Marine Fisheries Service, in any 

 subsequent enforcement proceeding, to demonstrate 

 that feeding dolphins, under the facts of the particular 

 case, constitutes harassment under the new definition. 



The Federal defendants filed a motion to dismiss 

 the case on 27 October 1995. The government sought 

 dismissal on two grounds. The government argued 

 that there was no pending enforcement action against 

 the operator and therefore the case was not appropri- 

 ate for judicial review. Secondly, the government 

 argued that the statutory definition of harassment 

 enacted in 1994 was consistent with the appellate 

 court's ruling in the earlier case. As such, the 

 plaintiff was precluded from relitigating the matter 

 since the precise issue being raised had already been 

 adjudicated. 



Before the government's motion to dismiss the case 

 could be considered by the court, the plaintiff agreed 

 to dismiss the case without prejudice by joint stipula- 

 tion of the parties. 



Another matter involved a National Marine Fisher- 

 ies Service enforcement action against a freelance 

 photographer for allegedly harassing pilot whales in 

 Hawaii. In 1992 the photographer and a companion 

 had pursued a pod of pilot whales in a small boat and, 

 when the whales stopped, entered the water to swim 

 with them. While the photographer filmed the epi- 

 sode, his friend petted the whales. The friend was 

 bitten by a whale and then grabbed in the whale's 

 mouth and pulled underwater to a depth of about forty 

 feet. She was held at that depth for about a minute 

 before the whale brought her to the surface. The 

 incident gained national prominence when the film 

 was aired on television. 



After review of the matter by an administrative law 

 judge, the photographer was assessed a civil penalty 

 of $10,000 for harassing the whales through operation 

 of the boat and by activities in the water. A separate 

 fine against the friend was later dropped when she 

 agreed to cooperate with the agency in investigating 

 the incident. 



On 12 March 1995 the photographer filed an action 

 for judicial review of the agency's decision in the 

 U.S. District Court for the Northern District of 

 California (Tepley v. National Oceanic and Atmo- 

 spheric Administration). The court issued its ruling 

 on 28 November 1995. Relying on a court of 

 appeals' ruling in United States v. Hayashi (discussed 

 in the Commission's 1994 annual report), the court 

 stated that harassment under the Marine Mammal 

 Protection Act refers to a "direct, serious disruption 

 of a [marine mammal's] customary pursuits." Using 

 this standard, the court ruled that the administrative 

 law judge erred in finding that the actions of the 

 photographer or his companion harassed the pilot 

 whales. With respect to pursuit of the whales, the 

 court found that substantial evidence was lacking to 

 support the conclusion that the whales were fleeing 

 the boat. As for the underwater encounter, the court 

 found no evidence that the actions taken by the 

 photographer and his companion were anything but 

 gentle and cautioned that it would be difficult to 



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