Judge Enright's preliminary injunction was subject to numerous 

 conditions, including an aggregate take limit of 10,000 porpois 

 stock, and species limits reflecting the recommendations of the admin- 

 istrative law judge, and a requirement for NMFS observers on 10 

 percent of the boats within 2 weeks, and 25 percent within an addi- 

 tional 20 days. 



On January 28, 1977, the U.S. District Court of Appeals for the 

 District of Columbia Circuit agreed to receive litigants' briefs on 

 January 31 and hear oral arguments on February 1 on the issue, and 

 in light of Judge Enright's action, the court ordered litigants to 

 apply to the U.S. District Court for the Southern District of Cali- 

 fornia for a stay of that court's preliminary injunction and related 

 orders of January 21. Pending a decision by the appeals court, the 

 Government was restrained from issuing any permits to authorize, 

 incidental take of porpoise in association with commercial yellowfin 

 tuna purse seining and was ordered to rescind any outstanding per- 

 mits; the court also ordered the tunamen to avoid taking porpoise 

 incidental to their fishing, pending further orders of that court. 



On February 3, 1977, after hearing oral arguments, the appeals 

 court granted the motion of the Committee for Humane Legislation 

 for injunctive relief and set forth an order which emphatically states 

 ■ — the counsel has the exact order here, which I will include in the 

 record at this point, but I am not going to read, but it did, among 

 other things, restrain the Secretary of Commerce from issuing any 

 permits, among other things, restrained the Tunaboat Association and 

 all of its agents, et cetera, from taking incidental to yellowfin tuna, in 

 a system commonly known as purse seine. 



It directed the Secretary of Commerce to formulate a plan to sub- 

 mit to the courts within 10 days on the steps to discharge their duties 

 under the court order; it ordered the Secretary of Commerce to in- 

 vestigate and report to the court various violation; it ordered the 

 Marine Mammal Protection Act, it ordered the Secretary, under the 

 act, to make findings as to whether or not they had been in violation 

 of the act; it ordered the FBI to investigate; it ordered that the 

 Secretary file a record of any violations with the court before grant- 

 ing any additional permits, and it ordered the American Tunaboat 

 Association to file with the clerk of the court by March 7, an affidavit 

 executed on behalf of each of its members, under what date and what 

 circumstances the member has engaged in taking of porpoise and 

 yellowfin ; it further directed that the order be communicated to all of 

 its members. 



[The material was placed in the record files of the committee.] 



Mr. Leggett. This congressional hearing today aims to determine 

 the latest developments in this continuing saga. It may provide good 

 stuff for an ultimate law review article, but it is most certainly not 

 funny to the Government, nor to the industry whose vessels hardly 

 know from one day to the next whether or not they can fish, whether 

 or not they must have observers on board, and even which court has 

 authority or jurisdiction. 



It is my hope that the developments in improved fishing techniques 

 which have been researched and demonstrated by the cruises of th* 



