MARINE MAMMAL COMMISSION — Annual Report for 1992 
conducting the study of swim-with-the-dolphin pro- 
grams. The contractor selected would be expected to 
collect data on the behavior and health of dolphins 
participating in swim programs and to assess the 
effects of the programs. To enable the existing 
programs to continue on an experimental basis during 
the study, on 31 December 1991 the Service extended 
the four existing permits until 30 June 1993. 
When the request for proposals failed to identify a 
contractor able to design and conduct the study, on 
18-19 May 1992 the Service convened a meeting to 
consider and design an interim study. Meeting 
participants, who included outside experts on dolphin 
behavior and training techniques as well as Service 
representatives, outlined a plan to carry out a study to 
assess certain behavioral and health characteristics of 
dolphins participating in swim-with-the-dolphin 
programs. 
In June 1992 the National Marine Fisheries Service 
contracted for a comparative study of the four facili- 
ties authorized to operate experimental swim-with-the- 
dolphin programs. The study team includes a senior 
ethologist and two other persons to work as observers 
on the three-part study. The first stage, the training 
of observers and preparation for fieldwork, has been 
completed. The second stage, a pilot study, is under- 
way and is expected to be completed in March 1993. 
The results of the pilot study will be analyzed and 
submitted in a report to the Service. Among other 
things, the report is to recommend any changes 
needed to improve the study techniques and design. 
Once the study protocol has been reviewed and any 
necessary modifications made, the third stage of the 
study will commence. This will involve observation 
of the four swim-with-the-dolphin programs over a 
nine-month period. 
At the conclusion of this comparative swim-with- 
the-dolphin behavioral/assessment study, the National 
Marine Fisheries Service will examine all available 
swim-with-the-dolphin data and determine whether 
existing programs should be continued and whether 
the establishment of additional programs should be 
permitted. 
As noted above, four swim-with-the-dolphin 
programs have been authorized by the National 
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Marine Fisheries Service on an experimental basis. 
By Federal Register notice of 6 October 1988 the 
Service indicated that it would not authorize additional 
programs until the completion of its review of the 
experimental programs. Nevertheless, on 9 July 1992 
Mirage Resorts submitted a request to the National 
Marine Fisheries Service seeking authority to conduct 
swim programs involving the six bottlenose dolphins 
it maintains in captivity. Consistent with its stated 
policy, the Service denied the request. 
In response, on 1 September 1992 Mirage Resorts 
filed suit against the Secretary of Commerce in the 
United States District Court for the District of Nevada 
(Mirage Resorts v. Franklin) challenging the Service’s 
decision not to authorize additional swim-with-the- 
dolphin programs. Mirage Resorts filed an amended 
complaint on 10 September 1992 alleging several 
violations of the Marine Mammal Protection Act and 
the Administrative Procedure Act. Mirage alleged 
that (1) no taking of a marine mammal occurs unless 
the animal is removed from the wild, thus no permit 
is required to conduct a swim program with dolphins 
already maintained in captivity; (2) the National 
Marine Fisheries Service is not empowered by the 
Marine Mammal Protection Act to regulate the care 
and maintenance of marine mammals held in captivity, 
including their use in swim programs; (3) the National 
Marine Fisheries Service may not prevent a permit 
holder from conducting a swim program because to do 
so would constitute an unauthorized regulation of the 
content of the facility’s public display program; 
(4) the adoption of the Service’s policy not to autho- 
rize additional swim programs pending review of the 
existing experimental programs is invalid because 
rulemaking procedures were not followed; and (5) by 
denying Mirage’s request to conduct a swim-with-the- 
dolphin program, the National Marine Fisheries 
Service acted arbitrarily and capriciously because the 
Service has authorized comparable programs at other 
facilities and because there is no evidence that such 
programs pose a danger to dolphins. 
Federal defendants filed an answer to the complaint 
on 2 November 1992 denying Mirage’s allegations 
and raising several affirmative defenses. At the end 
of 1992 Mirage had indicated that it intended to 
amend its complaint to allege that the National Marine 
Fisheries Service lacks authority to regulate the care 
