The ALJ's recommendations are not binding on NMFS, and that 

 Auvncy is expected to make a final determination on the 1977 quota 

 at any time. I expected their decisions would be revealed today, but 

 I have been advised they are not prepared to discuss the subject of a 

 quota — or more accurately, I should say, I have been advised they are 

 prepared not to discuss the subject. 



Now we come a little closer to the present, and the litigation con- 

 cerning the 1977 fishing season and the 1977 quota. 



On December 6, 1976, two motions were filed with Judge Richey of 

 the District Court for the District of Columbia. One by the Justice 

 Department on behalf of NMFS requested the U.S. district court to 

 extend until April 30, 1977, or until new regulations were adopted 

 following consideration of the ALJ's recommendations— whichever 

 come first — the stay of the court decision which bans fishing on por- 

 poise (i.e., Judge Richey's May 1976 decision). That stay was effec- 

 tive only through January 1, 1977, and new regulations could not be 

 ready by then. 



The second motion filed that day was by the Committee for Hu- 

 mane Legislation/Fund for Animals seeking to have the U.S. District 

 Court for the District of Columbia enjoin NMFS from issuing its 

 proposed interim regulations related to tuna fishing on porpoise "or 

 any similar regulations which may be issued without compliance with 

 the provisions of the Marine Mammal Protection Act. . ." 



Opposing briefs were filed that same day by the American Tuna- 

 boat Association and by the Environmental Defense Fund/Fund for 

 Animals on the still unsettled question of whether NMFS should set 

 a single quota to cover all porpoise mortality in fishing operations, or 

 whether limits should be set on a species-by-species, population-by- 

 population basis — the approach taken by NMFS in its proposed 1977 

 regulations. 



On December 30, 1976, Judge Richey denied the Government's re- 

 quest for an extension of the stay on the order banning on porpoise 

 fishing, thus meaning such fishing could not commence on January 1, 

 nor until new legal regulations had been properly promulgated. The 

 Government immediately moved to appeal that decision. 



Over in California, in Judge Enright's Court, however, a lawsuit 

 by the motor vessels Theresa Ann, et al. against the Secretary of Com- 

 merce led to granting in that Court on January 21, 1977, of a prelimi- 

 nary injunction enjoining NMFS from enforcing the provisions of 

 the 'Marine Mammal Protection Act related to incidental taking of 

 marine mammals in commercial fishing operations "until such time 

 as a 1977 permit is either issued or rejected under the Act." 



At the same time Judge Enright denied plaintiff's request for a 

 summary judgment declaring the law to be unconstitutional. Thus, we 

 have the most unusual, perplexing situation of two District Court 

 Judges ruling in opposite ways on essentially the same question. 



Judge Richey denies an extension of the stay and fishing on por- 

 poise is banned until new regulations are promulgated; Judge En- 

 right approves an extension of the stay, thus permitting fishing on 

 porpoise for tuna until, at least, a 1977 permit is either issued or 

 rejected. 



