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best be used, and how we could capture what it is the negotiated 

 proposal was looking for, and still make everyone of us comfortable. 



Senator Kerry. Now, is your burden of proof argument based on 

 the fundamental, underlying concept of the MMPA, that we want 

 to get to either an insignificant level approaching zero, or zero? Is 

 that the theory underlying the burden, the placement of the bur- 

 den? 



Dr. Foster. The theory is, I think, the original MMPA started 

 out with a moratorium, no takes; unless you come in and you meet 

 certain requirements, and you get a permit for a public display 

 take. Unless you come in and you do meet certain requirements; 

 unless you the taker can demonstrate, that your action will not dis- 

 advantage the stock. 



Now it has flipflopped. Now the negotiated proposal says, you are 

 hereby authorized to take, unless the Government can show that 

 what you are doing will disadvantage the stock. So, it completely 

 reverses the burden of proof Maybe you want to add to that? 



Dr. HOFMAN. I think that accurately describes the issue. 



Senator Kerry. Well, I understand there is the flipflop. I am try- 

 ing to understand, I mean, here we have two entities polarized on 

 this concept. And I am going to test both. I want to understand 

 what the foundation is for your position. And your foundation is es- 

 sentially that that is the best way to protect the animals? 



Dr. Foster. Yes. Yes, I think so. Indeed. 



Senator Kerry. And absent the moratorium, there is sort of a 

 flagrant kind of lack of production of burden, and a permissiveness 

 that results in takings? 



Dr. Foster. It also makes it very difficult for the Grovernment to 

 enforce or to carry out the provisions of the proposal. If now the 

 burden of proof is on us to prove that what is going on is a prob- 

 lem, it becomes very, very expensive, in addition to the fact that 

 it philosophically is different. 



Because if you had the same amount of money for enforcing ei- 

 ther proposal, and you wanted the same degree of protection, we 

 believe it would cost more to enforce, more to carry out the nego- 

 tiated proposal, because of that burden of proof. Because the Gov- 

 ernment would now have to see a violation, in order for there to 

 be a violation. We would have to see someone take a marine mam- 

 mal. And the way you would do that is through use of observers, 

 and that would become even more expensive. Would you like to add 

 something? 



Senator Kerry. The counterargument, obviously, in this process 

 is: Wait a minute, folks. You are the ones saying there is a value 

 here. You are the ones implementing a prohibition. You are the 

 ones asserting a compelling governmental interest for this process. 

 You are the ones who are restricting our access and livelihood. 

 Therefore, you ought to be able to tell us why; and moreover, it is 

 extremely expensive for us to come in, weigh it against all oi your 

 taxpayer paid lawyers, and so forth, and assert our rights. So 

 therefore, the burden ought to be yours. I am just playing the advo- 

 cate here. 



Dr. Foster. Certainly. I guess what we are saying is that, in the 

 beginning, in the MMPA, one of the strongest underpinnings of the 

 MMPA was this burden of proof. Maybe that is what we want to 



