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the part of most witnesses over the health of porpoises. We know, of course, 

 that the Court is well aware of the express opinion of both the District Court 

 and the Court of Appeals as to the priorities set by the MMPA. Equally, 

 we know that the Court is well aware of the problem of overfishing in tuna — 

 in addition to the slaughter of porpoise. 



PROPOSED FINDINGS OF FACT 



1. Until approximately 1959, there was an adequate supply of tuna (in- 

 cluding yellowfin) for domestic consumption without the killing of any por- 

 poise "incidental" to commercial tuna fishing. 



2. Under Section 101(a)(2) of the Marine Mammal Protection Act (16 

 U.S.C. § 1371(a) (2), the Congress gave the tuna fleet a grace period of two 

 years, beginning October 21, 1972, in which to solve the "incidental" kill of 

 porpoise, but stated further that : 



". . . . In any event it shall be the immediate goal that the incidental kill 

 or incidental serious injury of marine mammals permitted in the course of 

 commercial fishing operations be reduced to insignificant levels approaching 

 a zero mortality and serious injury rate." 



3. The legislative history of the Marine Mammal Protection Act clearly 

 shows that the two-year period of grace was given on the assurance that the 

 incidental kill problem was on the verge of solution and that it would be 

 solved within that period. 



4. The "incidental" kill problem is far from solved at present, upwards 

 to 100,000 porpoise having been "incidentally" killed by the U.S. fleet in 

 1976. 



5. At the current time, approximately 80% of the worldwide slaughter of 

 porpoises is perpetrated by the U.S. tuna fleet. 



6. There has not been a single enforcement action taken against any U.S. 

 vessel or citizen with respect to taking of porpoise since the Act came into 

 effect in 1972. 



7. There is no figure for proposed "take" in 1977 in the Federal Register 

 announcement of proposed regulations (Oct. 14, 41 F.R. 45017, Col. 3, et seq.) ; 

 the only mention of a figure is that of 29,290 which is contained in what might 

 best be called a "preamble" or "explanation" of the proposed regulations ; 

 and, further, the proposed regulations [in Section 216.24(d) (2) (i) (A)] con- 

 tain this open-ended provision : "The Director may change the maximum num- 

 ber of marine mammals that may be killed, as specified in the general permit, 

 whenever new information becomes available which results in the re-evaluation 

 of the population or OSP level of any stock or species." Thus, the proposed 

 regulations and general permit will in effect be open-ended as in years prior 

 to 1976. 



8. The number 29,920, even if it were firm (which it is not) is not an "in- 

 significant level approaching a zero mortality and serious injury rate" which 

 is the "immediate goal" of the Marine Mammal Protection Act [16 U.S.C. 

 § 1731(a) (2)]. 



9. Certain species and stocks are either "depleted", "threatened", or "en- 

 dangered" ; among these are Fraser's dolphin, Risso's dolphin, rough-toothed 

 dolphin, and short-finned pilot whale, who according to the Government's own 

 statistics respectively have total populations of 7800, 7500, 450, and 60,000. 

 [41 F.R. 45016, Col. 1]. 



10. Equally, there are certain species for which no population levels have 

 even been estimated ; these are the coastal spotted dolphin, Costa Rican spinner 

 dolphin, melon headed whale, any pygmy killer whale. [Ibid]. 



11. There is not one single species or stock out of seventeen for which a 

 concrete OSP figure is given ; for the most part they are listed at AOA 

 which translates into "at or above" [41 CFR 45016, table at top of columns 2 

 and 3]. 



12. There is a tentative "quota" for some species as low as five animals ; 

 there is no way to divide these among 120-plus vessels which will be in- 

 cluded under the general permit. [Unless the ATA manager is wiser than 

 Solomon, this task will be beyond him.] 



13. The regulations contain no fixed provisions for observers and/or en- 

 forcement personnel on the tuna boats which will set on porpoise under the 

 general permit. 



