67 



Also early in 1988, ihc U.S. Court of Appeals for the District of Columbia Circuit 

 Court underscored the MMPA's mandate that no incidental take permits could issue without 

 OSP findings. In Kokechik Fishermen's Association v. the Secretary of Commerce, the coun 

 upheld a lower coun's ruling that set aside the marine mammal incidental take permit issued 

 to the Japanese salmon driftnet fishery. The lawsuit challenged the permit on the grounds 

 that NMFS allowed the taking of Dall's porpoise but did not authorize the take of other 

 marine mammals, in particular depleted northern fur seals, which are prevalent in that area 

 and frequently taken incidentally in salmon driftnets. The coun declared that NMFS could 

 not issue permits for Dall's porpoise if, northern fur seals (or, for that matter, other marine 

 mammals for which a permit could not be issued) would inevitably be taken. This holding 

 was in keepmg with the strong policy of the MMPA to take a conservative approach in favor 

 of protecting marine mammals. 



The problem was intensified: NMFS was unable to determine OSP for affected 

 marine mammal stocks by the end of 1988 and the Kokechik decision uncovered what was 

 inherently flawed about the permit issuing system— lack of sufficient information to be certain 

 that incidental takes would not harm marine mammal stocks. This situation brought together 

 representatives of the environmental community and the fishing industry during the spring and 

 summer of 1988 to find a way to enable fishermen to go fishing, yet minimize the impact of 

 that activity on marine mammals. They hammered out a series of points that they presented 

 jointly to the Senate Commerce Committee and the House Merchant Marine and Fisheries 



