MARINE MAMMAL COMMISSION — Annual Report for 1992 
Animal Protection Institute v. Mosbacher and 
International Wildlife Coalition vy. Franklin 
On 28 April 1989 the National Marine Fisheries 
Service issued a public display permit to the John G. 
Shedd Aquarium for importing up to six false killer 
whales (Pseudorca crassidens) already held captive in 
Japan. The Sierra Club Legal Defense Fund, on 
behalf of the Animal Protection Institute and other 
environmental and animal welfare groups, filed suit 
on 12 June 1989 challenging issuance of that permit. 
The plaintiff's suit challenged some of the Service’s 
basic interpretations of the Marine Mammal Protection 
Act with respect to public display permits. The Shedd 
Aquarium and the American Association of Zoological 
Parks and Aquariums filed for and, on 11 September 
1989, were granted intervenor status in the case. 
In a motion for summary judgment filed on 17 
January 1990, plaintiffs alleged that issuance of the 
permit violated section 101(a)(3)(A) of the Marine 
Mammal Protection Act because the Service had not 
certified that the program for taking marine mammals 
in Japan is consistent with the provisions and policies 
of the Marine Mammal Protection Act. Plaintiffs also 
contended that before a public display permit could 
properly be issued, the Service was required, through 
the formal rulemaking procedures of section 103, to 
determine that the affected population was within its 
optimum sustainable population level and to establish 
a quota for allowable takes. The plaintiffs asserted 
that the Service violated section 102(b) of the Act by 
failing to obtain sufficient information from the appli- 
cant to determine that the animals to be imported were 
not pregnant or nursing at the time of taking, were not 
less than eight months old, and were not 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 
plaintiff's 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 
issuing a public display permit; the Service properly 
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determined that permit issuance would not adversely 
affect the wild false killer whale population because 
the requested animals were already in captivity; and 
minimum size requirements 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 Animal Protection Institute v. Mos- 
bacher was completed in February 1990, but a hear- 
ing on the matter was not scheduled until 1992. In 
the meantime, on 29 November 1991 the Service 
issued a permit to the Shedd Aquarium authorizing the 
importation of four beluga whales (Delphinaptera 
leucas) from Canada. Environmental and animal 
welfare groups, this time headed by the International 
Wildlife Coalition, filed suit in district court on 24 
January 1992 challenging the issuance of that permit 
(International Wildlife Coalition v. Franklin). The 
grounds for the challenge were essentially identical to 
those in Animal Protection Institute v. Mosbacher. 
Because of the similarity of parties, facts, and issues, 
the cases were consolidated by the court on 29 April 
1992. A hearing was held on 2 July 1992. 
The U.S. District Court for the District of Colum- 
bia issued its ruling on 31 July 1992, upholding both 
permits. The court found that Congress, in granting 
a limited exception from the moratorium on taking 
and importing marine mammals for “beneficent 
purposes,” such as scientific research, public display, 
or species enhancement under section 101(a)(1) of the 
Marine Mammal Protection Act, gave the Service 
authority “to grant a modest dispensation...without 
awaiting the outcome of more elaborate administrative 
proceedings...for more destructive assaults upon the 
population of a species.” Thus, formal determinations 
that the affected stocks are at their optimum sustain- 
able population levels and that the country of origin 
has a marine mammal program consistent with the 
Marine Mammal Protection Act were not necessary. 
The court further ruled that the Service had acted 
rationally in issuing the two permits to the Shedd 
Aquarium. With respect to importing false killer 
whales from Japan, the court reasoned that inasmuch 
as the animals were already in captivity, their impor- 
tation would have no direct effect on the wild popula- 
tion. The court also found that the administrative 
