138 



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have the effect of banning the importation of marine mammals 

 even though importation would improve their condition. And, 

 as indicated previously, the proposal violates the further 

 admonishment of the Court (see page 6, supra ) that Congress 

 intended that NMFS procedures be simple and nonburdensome. 



The proposal violates the MMPA and the Constitution by 

 voiding the rights of persons who possess or wish to possess 

 marine mammals. For example, only "facilities" could hold 

 permits for marine mammals; others would lose their rights to 

 marine mammals, including marine mammals that they now hold. 

 This violates the MMPA, which allows "persons" to have 

 permits, 16 U.S.C. § 1374(c)(1), and takes such persons' 

 property without due process and without just compensation. 



Permit holders would have to renew their permits every 

 five years. That obligation would exist despite the fact 

 that the permit had already been exercised. If a permit were 

 not renewed, the possessor of the marine mammals would lose 

 his rights to the animals he possesses. This would violate 

 the terms of the MMPA, which allows a person to possesses a 

 marine mammal once it has been lawfully collected. See . 16 

 U.S.C. § 1372(a)(3). The proposal in this regard is also an 

 unconstitutional taking of property. 



The proposal exceeds the boundaries of the MMPA with 

 respect to educational programs. It violates Congress's 

 admonishment that NMFS not become involved in regulating the 

 content of educational programs. See . 16 U.S.C. S 

 1374(c)(2); H.R. Rep. No. 970, 100th Cong., 2d Sess. at 34 

 (1988) . NMFS would even prevent entities from selling 

 certain products such as photographs of marine mammals except 

 in restricted circumstances. Such regulation violates the 

 First Amendment rights and is an unconstitutional taking of 

 property. 



The proposal directly violates the statutory exemption 

 of pre-Act animals from the requirements of the MMPA. 16 

 U.S.C. S 1372(e) . 



The proposal would also authorize the Assistant 

 Administrator for Fisheries to practice veterinary medicine 

 without a license or a degree in veterinary medicine, in 

 violation of State Practice laws governing the practice of 

 veterinary medicine. 



The proposal seeks to regulate exports of marine mammals 

 despite the fact that the MMPA does not govern exports and 

 the MMPA does not have extraterritorial applicability, United 

 States v. Mitchell . 553 F.2d 996 (5th Cir. 1977). 



