79 



8 



definition of "take" does not limit the occurrence of a take to 

 the wild. Since 1979, when they entered into a memorandum of 

 agreement, the three agencies have recognized shared jurisdiction 

 over captive marine mammals under the two statutes. 



A recent district court ruling ( Mirage Resorts v. Franklin ) , 

 however, has placed in doubt the authority of the National Marine 

 Fisheries Service and the Fish and Wildlife Service over captive 

 marine mammals. The court concluded that Congress, in enacting 

 the Marine Mammal Protection Act, intended the Act "only to apply 

 to marine mammals in the wild." Consistent with this view, the 

 court ruled that the National Marine Fisheries Service lacks 

 authority to regulate swim-with-the-dolphin programs, "as such 

 programs do not involve a 'taking' of the marine mammals from 

 their natural habitat in the wild." Broadening the applicability 

 of its decision, the court also found the Service's position that 

 its "regulating authority covers the purchase, transportation, 

 and continuous care of previously captured animals [to be] 

 untenable. " 



In contrast, the court found that the Animal and Plant 

 Health Inspection Service has broad authority over captive marine 

 mammals under the Animal Welfare Act. In this regard, the court 

 ruled that nothing in its order "should be construed as a 

 prohibition on the Animal and Plant Health Inspection Service 

 from issuing regulations regarding [swim-with-the-dolphin] 

 programs. " 



Another aspect of the Mirage ruling needs to be called to 

 the attention of this Committee as it considers amendments to the 

 Marine Mammal Protection Act. The ruling may have unforeseen 

 conseguences for facilities seeking to transport, purchase, and 

 sell captive marine mammals. Under section 102(a)(4) of the Act 

 it is unlawful for any person to transport, purchase, sell, or 

 offer to purchase or sell any marine mammal unless it is 

 authorized pursuant to another provision of the Act, e.g. under a 

 public display permit. If, as the court has stated, the Service 

 is without authority to regulate transportation, purchases, 

 sales, or anything other than the removal of animals from the 

 wild, the Service not only would be precluded from prohibiting 

 such activities, it would be precluded from authorizing them. 

 That is, there may be not any mechanism to overcome the statutory 

 prohibition against transporting, purchasing, and selling marine 

 mammals, if, as the court has ruled, the Service has no 

 jurisdiction to authorize such activities. Even if it does 

 nothing else to clarify agency authority over captive marine 

 mammals under the Marine Mammal Protection Act, Congress should 

 give its attention to this de facto prohibition on transporting, 

 selling, and purchasing marine mammals. 



As to the underlying guestion of which agency or agencies 

 should be given jurisdiction over captive marine mammals, the 



