272 



1. Knowledge of population is in the early period of development, but is 



progressing. 



2. Uver conservation (virtually certain estimates) is used to set quotas. 



3. Time la needed to develop more useful knowledge, although progressive 

 Improvement In porpoise mortality rates should be expected in that time. 



1 The United States fleet must he kept operating as the surest and only 

 major source of developing data in that time. 



5. It is possible to maintain a viable United States fishery and to reduce a 

 porpoise mortality at the same time. 



v. THE LAW 



The purpose of the law as it relates to porpoises is that mortality be re- 

 duced to the lowest practicable level as quickly and effectively as possible. 



Hearings records show that it was not the intent of the law to: (1) Stop 

 tuna fishing; (2) eliminate the fishery; (3) force removal of the industry; 

 (4) give control to the judiciary; and (5) set impossible immediate goals. 



There is substantial evidence of all this. Senate Report 92-863 states : 



"The Secretary for example, in regulating the operations of tuna industry 

 with respect to the incidental catching of porpoise must consider the technical 

 ability of these fishermen to avoid injury to porpoises. It is not the intention 

 of the Committee to shut down or significantly to curtail the activities of the 

 tuna fleet so long as the Secretary is satisfied that the tuna fishermen are 

 rising economically and technologically practicable measures to assure minimal 

 hazards to marine mammal populations." 



The District Court, Washington, D.C interpreted the Act as : 



"The Act was not intended as a balancing act between the interests of the 

 fishing industry and the animals." 



This opinion meant that only environmental impact was considered by Con- 

 gress and that economic impact was ignored by Congress. The hearings records 

 do not support this intent. 



The tuna fishery had some naive expectations upon passage of the Marine 

 Mammal Protection Act. It fully expected that it would enter into a period of 

 research and improvement in methods to reduce porpoise mortality on a co- 

 operative, progressive basis and that progress in terms of reduced mortality 

 rates would meet the criteria. Much of Congress was equally naive in its 

 beliefs. Our representatives who voted for the bill believed this also. One of 

 them stated for the record : 



"The bill reported out by this Committee would set up the machinery by 

 which a reasonably intelligent decision could be made and. certainly, assures 

 the preservation of mammals as described in the bill, and also assures the 

 preservation of a major industry which is a contributing factor to the economy 

 of my State * * * ." 



Important legislation, like diplomacy, represents the art of the possible. This 

 indeed becomes a series of balancing acts in a complex world with a multitude 

 of important interests to be considered. 



The responsible government agency, National Marine Fisheries Service, 

 thought that balancing of interests was required in stating: 



"We must be realistic if we establish a ceiling for 1976. recognizing our 

 obligation to both the porpoise and the industry." That is a balancing act and 

 it is reasonable. 



The Service understood that • * • "the mandate of Congress is that the 

 (Federal Agency) should try to reduce porpoise mortality in a way that will 

 mnintaidn a healthy United States tuna industry." 



The law has been subject to differing interpretations and requires clarifi- 

 cation. Right now if is a spring board for court challenges and delaying actions 

 destructive to the economy and not helpful to conservation. 



The administrator of the National Oeeanographie and Atmospheric Ad- 

 ministration which is responsible for the National Marine Fisheries Service 

 stated succinctly with resneet to these principles: 



"I find it the height of irony that this strict reerime which will so adversely 

 affect the tuna fishery is unlikely to yield a solution to our porpoise mortality 

 problem, but is likely to make matters worse." 



The fishery did not reckon properly with those forces demanding that a 

 solution be found immediately and nrcuinc: that this was the intent of the 

 law. The fishery was not alone. It did not reckon at all with the power of 



