85 



14 



shortages or inhospitable conditions that otherwise would be 

 avoided; (4) condition animals to expect food from people, 

 possibly causing aggressive behavior when food is not offered; 

 and (5) expose animals to and make them more susceptible to 

 disease. 



In 1991, the National Marine Fisheries Service issued a rule 

 to include feeding wild marine mammals within the regulatory 

 definition of taking. While this rule was successfully 

 challenged in district court, that finding was overturned by the 

 Fifth Circuit Court of Appeals in October 1993. As such, there 

 no longer appears to be a need for such an amendment. 



Another recent case ( United States v. Hayashi) , which also 

 looked at the issue of taking by harassment under the Marine 

 Mammal Protection Act, should be called to your attention. In 

 this case, the Ninth Circuit Court of Appeals overturned the 

 conviction of a fisherman for allegedly taking porpoises by 

 shooting at them to deter them from interacting with his gear and 

 catch. For the reasons noted below, the court's ruling is 

 problematic. 



Noting that the term "harass" was not defined in the statute 

 or by applicable regulation, the court ascertained its meaning by 

 examining the other elements of taking (hunting, capturing, and 

 killing) included in the Act's definition of "take." Inasmuch as 

 those elements all involve "direct, sustained, and significant 

 intrusions upon the normal, life-sustaining activities of a 

 marine mammal," the court concluded that "'harassment,' to 

 constitute a ' taking' .. .must entail a similar level of direct and 

 sustained intrusion." Reviewing the facts of the case, the court 

 concluded that shooting at the porpoises did not have the 

 significance or sustained effect to be a taking under the Act and 

 reversed the conviction for insufficiency of evidence. 



A dissenting opinion took issue with the majority's 

 reasoning and the scope of the ruling. The dissenting judge 

 believed that the majority, in order to overturn a conviction it 

 thought unreasonable, had unjustifiably restricted the breadth of 

 the Act. The dissenting judge found "no source in the language, 

 structure, or legislative history of the Act" to support "the 

 gloss imposed by the majority" on the taking definition. 

 Further, the judge thought that the majority's cramped 

 construction of the term "taking" would unjustifiably "restrict 

 most aspects of the scheme envisioned by Congress for the 

 protection of marine mammals." 



Concerned with the application of the Hayashi ruling to 

 other factual settings and the implications of the ruling on its 

 ability to enforce the Act effectively, the Government, on 9 

 November 1993, petitioned the Court of Appeals to rehear the 

 matter. While not objecting to the reversal of the conviction on 



