nets as a result of shock, injury, and suffocation when they are 

 incidentally taken in the tuna purse seines. Congress addressed the 

 problem in the 1972 Marine Mammal Protection Act and directed the 

 Secretary of Commerce to conduct research to develop fishing gear 

 and techniques which would permit porpoise to escape from the nets 

 unharmed and, thus, reduce incidental take to the statutorily estab- 

 lished goal of insignificant levels approaching a zero mortality and 

 serious injury rate 



Under the act. the Secretary of Commerce must develop regulations, 

 in consultation with the Marine Mammal Commission, to govern the 

 incidental taking of marine mammals in the course of commercial 

 fishing. 



Following a 2-year grace period which expired October 21, 1074, 

 commercial fishermen could legally take porpoise incidental to their 

 fishing only under permits issued by the Secretary of Commerce and 

 according to conditions established by him [her]. 



The Secretary of Commerce, on October 21, 1974, issued a general 

 permit to the industry to allow incidental taking of porpoise for the 

 remainder of the 1974 fishing season [and for the 1975 season, as 

 well]. In December, 1975 he issued the American Tunaboat Associa- 

 tion a general permit and individual fishermen certificates of inclusion 

 governing incidental po7-poise take for the 1976 fishing season. These 

 regulations and actions of the Secretary were challenged in the court 

 by the Committee for Humane Legislation, Inc., and the Fund for 

 Animals, et al. 



On May 11, 1970, Judge Charles R. Richey of the U.S. District 

 Court for the District of Columbia issued an opinion and an order 

 declaring the National Marine Fisheries Service regulations, general 

 permit, and certificates of inclusion issued to tuna fishermen void as 

 contrary to the provisions of the Marine Mammal Protection Act. 



The two major failings in the regulations and the permit and cer- 

 tificates, the court held were: (1) the unrestricted nature of the gen- 

 eral permit which did not specify a limit to the number or kind of 

 porpoise which could be killed; and (2) the failure of the NMFS to 

 base its regulations on determined and published reasonable estimates 

 of the existing population levels of each species affected by the regu- 

 lations, on calculated optimum sustainable populations of each of 

 those species, and on the expected impact of the regulations on 

 achievement of the optimum sustainable population level for each 

 species. 



Judge Bichey's opinion concluded that the : 



Court feels that the only appropriate relief at this time is to stop com- 

 pletely the incidental killing of porpoise unless and until the Federal defendants 

 are able to determine, as the Act plainly requires, that such killing is not ta 

 the disadvantage of the porpoise, and is otherwise consistent with the intent 

 of the MMPA. 



That decision marked the beginning of a series of often involved 

 and confusing legal actions which continue to this day. Judge Richey's 

 original order was to take effect on May 31, 1976, to provide time for 

 its implementation. A request by NMFS and the tuna industry repre- 

 sentatives to further delay the effective date of the order, pending 

 appeal of the decision, was denied by the district court, but granted 



