71 



B. Harassir^ Litigation to Undermine the Section 1371(a)(1) Simplified Regime For 

 Public Display and Scientific Research 



Harassing litigation filed by groups opposed to maintaining marine mammals in 

 zoological institutions threatens to cripple public display and scientific research in- 

 stitutions. 



Two consolidated lawsuits allege that the MMPA should be construed for the first 

 time in its more than 20-year history to impose a variety of onerous requirements 

 on public display permits. i3 These lawsuits are baseless because the MMPA's public 

 display provisions (§ 1371(a)(1)) are separate from those relating to other takings, 

 such as commercial fisheries (§1371(aX2)) and "waivers" (§ 11371(aX3XA)). The 

 challenge has been rejected by the District Court.i4 The District (Dourt properly 

 ruled that "[f]or beneficent purposes, such as for scientific research, stock preserva- 

 tion, or, as here, for public display" 



"in §1371(aXl) Congress gave the Secretary authority to grant a modest dis- 

 pensation in such cases from the most onerous constraints of the MMPA — the 

 absolute moratorium — without awaiting the outcome of more elaborate adminis- 

 trative proceedings the regulations might require for more destructive assaults 

 upon the population of a species." 

 799 F. Supp. at 179. An appeal has been filed in these cases by the unsuccessful 

 animal protectionist plaintiffs. 



Congress should reject any effort to overturn this proper and beneficial interpreta- 

 tion of the Act. In addition, while the Marine Mammal Coalition is confident that 

 this interpretation will be sustained on appeal, it believes that it would be appro- 



{)riate for Congress to reinforce this interpretation in order to avoid further onerous 

 itigation in other jurisdictions that would seek to impose crushing administrative 

 burdens on public display and scientific research institutions. In so doing, Congress 

 should further stress the importance of the role of public display and scientific re- 

 search, their special status, and the simplified regime intended for them. 



C Transfers of Marine Mammals 



Litigation has also been filed challenging NMFS' procedures allowing public 

 aquariums to transfer marine mammals to otner institutions and challenging other 

 important features of the NMFS's regulatory regime for public display and scientific 

 research. 15 While the Marine Mammal Coalition is confident that NMFS and the 

 public display community will defeat such challenge, appropriate amendments to 

 the MMPA reinforcing the MMPA's policies appear warranted in order to avoid fix- 

 ture harassing litigation elsewhere. Congress should reinforce that a person who al- 

 ready has an MMPA permit does not need an additional MMPA permit to transfer 

 marine mammals already in captivity between its own facilities or to transfer to an- 



pose of the permit program, to allow for research or public display, activities that would other- 

 wise be prohibited. * * ♦ / feel that the proposed regime will not implement the MMPA correctly 

 unless it preferentially allocates potential takes to research, public display, and ecological en- 

 hancement or salvage efforts." (Emphasis added.) 



He goes on to recommend: "Giue priority for ABR to activities such as research and public dis- 

 ptay which benefit marine mammals." (Emphasis added.) 

 The Center for Whale Research in its comments states that 



"we disagree with the concept of introducing a NOAA determined total allowable removal 

 (ABR) level governing removals incidental to commercial fisheries and other activities (eg: public 

 display and research) to allocate annually among user groups. In practice this would mask the 

 lethal removals in commercial fishing with nonlethal 'takes' by harassment, research and public 

 display." 



The Center concludes that the regime should focus on commercial fisheries "and not obfuscate 

 the issue by allocation, permit process and accounting for non-fishing takes by other users [e.g. 

 research and public display]." 



13 The complaints, for example, urge imposition of a "foreign consistency provision" that clear- 

 ly does not apply to the special exception for public display and scientific research under Section 

 1371(a) (1). The foreign consistency provision applies to the separate category of "waivers" under 

 Section i371(a) (3) (A). The foreign consistency provision is inappropriate for public display and 

 scientific research since it would impose a further burdensome administrative proceeding (and 

 potential litigation) concerning the details of the marine mammal program of the country of ori- 

 gin. And it could potentially bar the import of a marine mammal, and thus deny the conserva- 

 tion and other benefits of having the animal, based on the results of that proceeding. These are 

 results counterproductive to important goals of the MMPA as they relate to public display and 

 scientific research. The complaints also seek to impose onerous studies relating to the status 

 of the stock, as a precondition to a display or research permit, studies that are not necessary 

 in light of the small number of animals involved, the adequate safeguards already provided 

 under Section 1371(aXl), and the beneficial purposes of public display and scientific research. 



I* Animal Protection Institute v. Mosbacher. 799 F. Supp. 173 (D.D.C. 1992). 



^Kama v. New England Aquarium, C.A. No. 91-11634-N (D. Mass.). 



