121 



Mr. Leggett. Very good. Your statement is brief and very helpful. 



Let me state this. You indicate that a proposal for interim regu- 

 lations which would permit taking of porpoise, supported by the 

 NMFS, the industry, and most environmental groups, presumptively, 

 not Mr. Fensterwald, but including those represented by EDF, is 

 currently pending before the U.S. Court of Appeals for the District 

 of Columbia. 



What kind of quick fix are you proposing there? 



Mr. Butler. It has been pending since last December. It is pro- 

 posed that the draft regulations proposed last October go into effect 

 during this interval prior to issuance of the final 1977 regulations. 

 This would permit a take of 10,000 porpoise. It would require 25 

 percent observers. 



It would prescribe taking of mixed schools or indeed any schools 

 which involved spinner porpoise at all, but, nonetheless, it would 

 permit taking of other species of porpoise. 



This has been pending on the merits before the U.S. court of ap- 

 peals since the last week in December, and indeed the final briefs 

 have long since been submitted, and a decision is expected at any 

 time from the U.S. court of appeals. 



If this decision were favorable, it would solve the problem almost 

 overnight. I have no idea as to whether the U.S. court of appeals is 

 going to act favorably or when they are going to act, but I do know 

 they have not yet acted on the substance of the question which is 

 before them, and therefore there is still room for some hope that the 

 problems of this interim period will be remedied by the U.S. court of 

 appeals here. 



It was widely thought by, I think, those who did not follow the 

 litigation closely, that when the court of appeals here issued its most 

 recent order, in effect asking Judge Enright in San Diego to stay his 

 decision which would have permitted the taking of porpoise, that 

 the Court of Appeals was saying that there could not be any taking 

 of porpoise, period, until issuance of final regulations, thereby an- 

 swering the substantive question which is before them. 



I think that is a wrong interpretation. I think it was a reassertion 

 of what they felt to be their prior jurisdiction to answer the ques- 

 tion, but the question is still before them to be answered. 



Mr. Leggett. Has anybody asked the court what they mean ? 



Mr. Butler. Excuse me? 



Mr. Leggett. Has anybody sought to ask the court what they 

 mean ? 



Mr. Butler. It is clear to the litigants that pending before the 

 court of appeals is the substance of the request by the industry and 

 the Government, supported by EDF, that this interim regulation 

 permitting the taking of porpoise go into effect. It may well be that 

 the court of appeals in its present stance will simply delay deciding 

 that question until after it. becomes moot. I do not know, but it is 

 equally possible that a decision could be forthcoming by this after- 

 noon. 



Mr. Leggett. And you indicate that most of the environmentalists, 

 and the industry and the Government, support that temporary 

 solution ? 



