by the U.S. Court of Appeals for the District of Columbia, which 

 court also agreed to reach a decision on the appeal directly on the 

 merits. On August 6, 1976, the appeals court affirmed the decision of 

 the district court, but stayed the effective date of the district court's 

 order until January 1, 1977. 



In the meantime, as part of NMFS's request to the court of appeals 

 for a stay of the district court's order and in view of the district 

 court's ruling that NMFS acted illegally in issuing a general permit 

 without limitation, the National Marine Fisheries Service, on May 28, 

 1976, established a quota for the 1976 fishing season of 78.000 porpoise. 



On June 11, 1976, NMFS published in the Federal Register its in- 

 tention to continue the ongoing cooperative gear testing research on 

 board commercial fishing vessels, to increase the number of scientific 

 observers placed aboard tuna vessels, and the incidental take regula- 

 tions were amended to establish the 78,000 take quota for porpoise. 



On October 15, 1976, the NMFS served notice in the Federal Register 

 that, based on available evidence and published methods of calcula- 

 tion, the 78,000 limit would be reached by October 19, 1976. Allowing 

 for the 7-day notice requirements, the notice prohibited further set- 

 ting on porpoise after October 22, 1976. 



The prohibition against setting on porpoise after October 22 was 

 challenged in the U.S. District Court for the Southern District of 

 California by five tunaboat owners. On October 21, 1976, Judge 

 "William B. Enright of that district court issued a temporary restrain- 

 ing order enjoining NMFS from implementing the prohibition until 

 November 1 pending consideration of the litigation on the merits. 



On November 2, 1976, Judge Enright refused to issue a permit 

 injunction, but he continued the TRO to allow time for appeal of his 

 ruling. On November 10, 1976, the U.S. Court of Appeals for the 

 Ninth Circuit upheld his refusal to issue a permanent injunction, thus 

 sustaining the legality of the ban. U.S. Supreme Court Justice 

 Rehnquist refused to intervene on November 12, 1976, and again on 

 November 15, and the prohibition against setting on porpoise went 

 into effect for the remainder of the 1976 season. The final estimated 

 porpoise kill by U.S. tuna vessels for 1976 appears to be between 

 90,000 and 110,000 animals, well over the 78,000 quota, set in June 

 and July bv NMFS. 



On October 14, 1976, NMFS published in the Federal Register pro- 

 posed regulations to replace those voided by Judge Richey's order. 

 Among other things, a total 1977 fishing season quota of 29.920 ani- 

 mals was proposed, broken down by stocks of species. This determina- 

 tion was arrived at by estimating the sustainable kill for each stock 

 or species, and then reducing it by the estimated foreign kill. 



Formal hearings before an administrative law judge on the pro- 

 posed regulations were held in "Washington, D.C.. from November 15 

 to 19 and December 1 to 4, and in San Diego. Calif., on November 

 22 to 24 and 26, 1976. Administrative Law Judge Vanderheyden on 

 January 19, 1977, recommended nearlv a tripling of the NMFS's pro- 

 posed quota, or 96,000 animals. The NMFC had suggested a quota of 

 50.158, and the Environmental Defense Fund, on behalf of several 

 conservation groups, proposed a quota of 52.130. 



