57 



that the total of such taking will have a negligible impact on 

 the affected species or population stock, and provides guidelines 

 for establishment, by the involved fishermen, of a cooperative 

 system for monitoring the taking. 



Subsequently a number of studies were undertaken to assess 

 and monitor the numbers of marine mammals being taken 

 incidentally in both U.S. fisheries and fisheries in other parts 

 of the world. These studies indicated that incidental take was 

 more common than had been previously thought and that, in some 

 cases, the take was greater than thought. For example, studies 

 done in the early and mid-1980s indicated that there was a 

 substantial incidental take of harbor porpoise in gillnet 

 fisheries in both California and New England. Other studies 

 indicated that there was a substantial incidental take of several 

 marine mammal and other non-target species in the high seas 

 driftnet fisheries in the North Pacific. 



In 1987 a permit issued by the Department of Commerce to the 

 Federation of Japan Salmon Fisheries Cooperative Association 

 authorizing the incidental take of Dall's porpoise in the 

 Japanese North Pacific salmon driftnet fishery was challenged 

 successfully in a lawsuit filed by the Kokechik Fishermen's 

 Association, representing Alaska subsistence fishermen, and 

 several environmental groups. The court found that issuing the 

 single-species permit violated the Marine Mammal Protection Act 

 because other species for which a permit could not be issued 

 (e.g. , northern fur seals) would inevitably be caught if the 

 Japanese were allowed to fish as authorized by the permit. 



The court's decision overturned a longstanding National 

 Marine Fisheries Service interpretation of the Marine Mammal 

 Protection Act's permit provisions and cast serious doubt on the 

 Service's ability to issue incidental take permits for other 

 fisheries including several domestic fisheries whose permits were 

 to expire at the end of 1988. For some fisheries, there was 

 insufficient information to determine which marine mammal species 

 were likely to be taken incidentally. In other cases, it 

 appeared likely that there were insufficient data to make the 

 required showing that the affected marine mammal species and 

 population stocks were within their optimum sustainable 

 population range and would not be disadvantaged as a result of 

 the incidental taking. In addition, small numbers of depleted 

 species for which incidental take permits could not be issued 

 were known to be taken incidentally in some fisheries. 



In response to the uncertainties raised by the Kokechik 

 decision and the growing recognition that incidental take levels 

 were greater in some fisheries than previously thought, 

 representatives of the U.S. fishing industry and environmental 

 community jointly proposed in 1988 that Congress exempt U.S. 

 fishermen from the general permit and "small take" provisions of 



