record sufficiently demonstrated that the stock of false 
killer whales from which the animals were taken was 
neither threatened nor endangered under the Endan- 
gered Species Act or determined to be depleted under 
the Marine Mammal Protection Act. Regarding the 
importation of beluga whales from Canada, the court 
found that the Environmental Assessment prepared by 
the Service adequately supported the decision to issue 
the permit. As to the requirement that the animals to 
be imported not be pregnant, nursing, or less that 
eight months old at the time of taking, the court found 
that the permit provision prohibiting the importation 
of such animals was sufficient. 
The decision was appealed by plaintiffs on 3 
August 1992. At the end of 1992, no briefing sched- 
ule for the appeal had been set. 
Kama v. New England Aquarium 
Kama, a captive-born 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 the Navy’s 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 Mammal Protection Act. Similarly, 
allegations were made that the Service improperly 
authorized the taking 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, pur- 
chase, sale, and transport of marine mammals under 
letters of agreement. 
193 
Chapter XI — Permits for Marine Mammals 
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 
also are seeking to invalidate the Service’s two-year 
extension of a public display permit issued to the New 
England Aquarium to collect 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 their 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 also has charged that 
plaintiffs have made false and defamatory statements 
regarding the aquarium and is seeking an additional 
$2 million in damages. 
Federal defendants filed a motion to dismiss the 
lawsuit, and in the alternative, a motion for summary 
judgment on 6 January 1992. In support of these 
motions the Federal government argued that inasmuch 
as the Marine Mammal Protection Act grants the 
Secretary of Commerce authority to oversee the 
supervision, care, and transport of captive marine 
mammals pursuant to and after taking or importation, 
and because the authority for continued oversight after 
a transfer extends from the original permit, there is no 
statutory requirement that a new permit be issued to 
authorize a transfer of a marine mammal from one 
permit holder to another. Rather, the Secretary may 
use the broad powers of section 112(c) to issue a letter 
of agreement to authorize such transfers. 
Federal defendants also contended that section 
109(h), which allows the Secretary’s designees to 
respond to marine mammal strandings, and section 
112(c), which allows the Secretary to enter into 
contracts or other agreements to further the purposes 
of the Act, provide the basis for authorizing the taking 
of stranded marine mammals under letters of agree- 
ment. As to the alleged violations of the National 
Environmental Policy Act, Federal defendants argued 
that the challenged transfer properly fell within a 
categorical exclusion, and therefore preparation of an 
Environmental Assessment or an Environmental 
