199 



Then the fleet must fish outside the CYRA, where the porpoise 

 found are predominantly the offshore spotted and white-bellied 

 spinner, both of which may be taken, and not the proscribed and 

 depleted eastern spinner. 



Inside the CYRA, Zone A-l, tuna fishing is only 30 to 40 percent 

 on any species of porpoise, eastern spinner included. Other methods 

 are more generally used here. 



Outside the CYRA, in contrast, setting on porpoise comprises up 

 to 95 percent of sets. Obviously it is the white-bellied spinner and 

 offshore spotted porpoise, both of which may be taken, which are of 

 primary importance to the industry, rather than the eastern spinner. 



The industry points out that boats in port when the CYRA is de- 

 clared closed may make one free trip into the CYRA, so setting in 

 eastern spinner territory could theoretically continue into May. This 

 is true, but means only that boats in port when the CYRA quota 

 is closed and hence eligible for the free trip will have to choose be- 

 tween fishing in the CYRA avoiding eastern spinner, or moving out 

 of the CYRA — as they will eventually do anyway — to fish on off- 

 shore spotted and white-bellied spinner. 



The industry complains that fear of unintentional take of even 

 one eastern spinner, given the act's penalties, will inhibit any setting 

 on porpoise since it is not always possible to be sure whether a few 

 individuals of the proscribed species are in a school. However, the 

 characteristic twisting leaps of the eastern spinner, plus the unique 

 forward cant of its conspicuous dorsal fin, make this species one of 

 the easiest of porpoises to identify. 



It is true that evidence at the recent adjudicatory hearings on 

 the 1977 quota did show that 7 percent of the time spinner porpoise, 

 species unspecified, have shown up in sets initially believed to be 

 of pure spotted schools. In its briefs to the administrative law judge. 

 NMFS recognized this fact and said enforcement actions would 

 recognize the possibility of good faith errors. 



Intent — scienter — is an element to be considered in determining 

 whether to apply the civil and criminal penalties of any statute, in- 

 cluding this one, absent specific language to the contrary. If ob- 

 servers and captains make infrequent and ultimately insignificant 

 errors in failing to identify eastern spinners travelling with other 

 species, and set upon them accidentally, the NMFS has already gone 

 on record as saying it will be understanding, providing every effort is 

 subsequently made to permit the mammals to escape alive. 



Indicia of good faith error will be the frequency, number, and 

 magnitude of such mistakes. The entire XMFS regulatory scheme is 

 built upon good faith judgment of skippers — enforcement policy 

 regarding the proscription on take of eastern spinners should be no 

 different in this regard, requiring of skippers no more than is possi- 

 ble short of ceasing to set out on porpoise entirely. 



We ourselves have recognized the impossibility of avoiding occa- 

 sional mistakes by advocating unintentional accidental take of east- 

 ern spinners up to 6,500, specifically to take account of the 7-percent 

 margin of possible error. 



To permit intentional take of this depleted species, however, would 

 not only be in violation of law, but would also, when combined with 



