Alaska Wildlife Alliance v. Jensen 
Under National Park Service regulations adopted in 
1985 to protect humpback whales, the numbers of 
cruise ships and other vessels permitted to enter 
Glacier Bay National Park during the summer whale 
season is limited. Under those regulations, no more 
than 107 cruise ships may be allowed to enter the park 
each summer. 
In 1990 the Service authorized 109 cruise ship 
entries into Glacier Bay. At that time, the Commis- 
sion and others questioned the procedures used by the 
Service to authorize entries in excess of the 107-entry 
ceiling imposed by the Service’s own regulations. On 
21 August 1990 the Alaska Wildlife Alliance filed a 
complaint challenging the National Park Service’s 
decision to authorize the two additional cruise ship en- 
tries. The plaintiff alleged that the Service, in author- 
izing those entries, did not follow applicable proce- 
dures, exceeded the maximum allowable number 
established by regulation, and violated the National 
Environmental Policy Act by not preparing a supple- 
mental environmental assessment. Plaintiffs, howev- 
er, did not seek injunctive relief, and none of the 
cruise ship entries authorized for 1990 were enjoined. 
As noted in the previous annual report, 107 cruise 
ship entries into Glacier Bay were authorized in 1991. 
The plaintiffs also alleged that commercial fishing 
operations being conducted in Glacier Bay violated 
applicable law, and in combination with tour boat 
operations, may be having adverse effects on hump- 
back whales and other cetaceans. The Park Service 
recognized that it had not properly authorized com- 
mercial 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 in 1991 to try to negoti- 
ate a settlement in the case. Inasmuch as the Service 
is revising the vessel management plan for the park, 
the parties agreed to stay consideration of the claims 
involving vessel entries. The parties agreed to pro- 
ceed on the issue of whether the Service may allow 
commercial fishing in the park. Briefing of the case 
is expected to be complete early in 1993. 
163 
Chapter VIII — Marine Mammals in Alaska 
United States vy. F/V Distant Water 
As discussed in the Pacific walrus section in 
Chapter III, in 1989 the National Marine Fisheries 
Service adopted a two-year seasonal fishery closure 
around Cape Peirce, Round Island, and the Twins 
Islands under the Magnuson 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 regula- 
tion of fisheries for the conservation and management 
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 walruses and not 
fishery resources and had not been issued pursuant to 
the Marine Mammal Protection Act, the defendant 
claimed they should 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 maintain... 
any fishery resource and the marine environment... 
and...designed to assure that...irreversible or long- 
term adverse effects on fishery resources and the 
marine environment will be avoided....” Similarly the 
Magnuson Act’s allowance for consideration of any 
relevant “economic, social, or ecological factor” when 
