Kokechik Fishermen's Association v. Secretary of Commerce Appeal of Federation of Japan Salmon Fisheries Cooperative Association , 839 F.2d 795 ( 1988 )

Opinion for the Court filed by District Judge GESELL.

Dissenting opinion filed by Circuit Judge STARR.

GESELL, District Judge:

This case requires us to examine an aspect of this nation’s announced policy to protect, in waters under its jurisdiction, marine mammal populations that are in danger of depletion or extinction.

Following formal rulemaking proceedings, the Secretary of Commerce issued a regulation¹ pursuant to the Marine Mammal Protection Act of 1972 (“MMPA”), 16 U.S.C. §§ 1361-1407 (1982 & Supp. Ill 1985), authorizing a group of Japanese commercial fishermen known as the Federation of Japan Salmon Fisheries Cooperative Association (“Federation”) to take a fixed number of Dali’s porpoise incidental to commercial fishing for salmon in U.S. conservation waters. The permit application was opposed at the administrative level by environmentalists, the Center for Environmental Education, et al. (“CEE”) and by a group of Alaskan commercial fishermen, Kokechik Fishermen’s Association, et al. (“Kokechik”). As finally authorized on May 22, 1987 after several amendments, the permit failed to meet objections advanced during the rulemaking process by Kokechik and CEE, on one side, and the Federation on the other side.

Shortly after the Secretary’s final decision, the Federation, Kokechik and CEE filed petitions for review of the permit in the U.S. District Court for the District of Columbia, as authorized by the statute. 16 U.S.C. § 1374(d)(6). On June 10, 1987, the three cases were consolidated by the District Court and a hearing held on the motions for preliminary injunction filed by the three parties. After careful consideration, the District Court granted the motions of petitioners Kokechik and CEE on June 15, 1987, and thus preliminarily enjoined the Secretary of Commerce from issuing a permit to the Federation; the Federation’s motion was thereupon dismissed as moot. Kokechik Fisherman’s Ass’n, et al. v. Malcolm Baldrige, et al, 679 F.Supp. 37 (D.D.C.1987). Appellants Federation and Secretary of Commerce then filed a notice of appeal in this Court on June 25, 1987.

Because a question of pure statutory interpretation controls our review of the District Court’s order, and its final resolution is essential, we turn immediately to this decisive issue. See NRDC v. Morton, 458 F.2d 827, 832 (D.C.Cir.1972). Perceiving the issue as the District Court preliminarily suggested it should be decided, we affirm and remand to the District Court only for such further proceedings consistent with this decision as may be required.

Background

In 1952, the United States, Japan and Canada signed the International Convention for the High Seas Fisheries of the North Pacific Ocean (“INPFC”). 4 U.S.T. 380, T.I.A;S. No. 2786. Under this treaty, Japan agreed to refrain from fishing for salmon in certain areas of the North Pacific Ocean and in the Bering Sea. In 1978, the INPFC was renegotiated to bring the treaty in conformity with the recent adoption by the United States of a 200 mile Fisheries Conservation Zone, now known as the Exclusive Enterprise Zone (“EEZ”). 30 U.S.T. 1095, T.I.A.S. No. 9242. The protocol amending the treaty permitted the Japanese to fish for salmon inside the U.S. EEZ. Id. The North Pacific Fisheries. Act of 1954 (“NPFA”), implementing the INPFC, was also amended in 1978 and exempted Japanese commercial salmon fishing from the strictures of the MMPA until June 9, 1981. 16 U.S.C. § 1034(b) (1976 & Supp. II 1978). The NPFA further provided that after June 9, 1981 the restrictions of the MMPA would apply with full force and effect to Japanese salmon fishing within the EEZ. Id. § 1034(c).

In 1981, the National Oceanic and Atmospheric Administration (“NOAA”), acting pursuant to section 1374 of the MMPA, issued the Federation a three year general permit allowing its members an annual take of 5,500 Dali’s porpoise, 450 northern fur seals, and 25 northern sea lions incidental to their commercial salmon fishing. Takings of Marine Mammals Incidental to Commercial Fishing Operations, 46 Fed. Reg. 27,056 (1981). Congress then extended this permit in 1982 by amendments to the North Pacific Fisheries Act on the condition that further research be performed examining ways to reduce or avoid incidental takings of marine mammals during salmon gillnet fishing. 16 U.S.C. § 1034(b) (1982). The permit was scheduled to expire on June 9, 1987 and without either Congressional extension of the permit or the issuance of a new general permit, the Federation’s commercial salmon fishing within the U.S. EEZ would effectively cease at that time.

On July 21, 1986, the National Marine Fisheries Service (“NMFS”), a division of NOAA, received an application from the Federation for a five year general permit under the MMPA which essentially sought an extension of the previous permit’s terms through June 9, 1992. As required by the MMPA, NMFS/NOAA published in the Federal Register a notice of receipt of the application, the proposed regulation based on the application and the scheduling of formal rulemaking hearings, along with the procedures to be used and issues to be examined at the hearings. Regulations Governing the Taking and Importing of Marine Mammals, 51 Fed.Reg. 29,674 (1986). In addition, included in the notice were statements required under section 103(d) of the MMPA concerning the status of each marine mammal stock affected and the effects of any permitted taking on its optimum sustainable population (“OSP”).² 16 U.S.C. § 1373(d). A Draft Environmental Impact Statement was also issued shortly thereafter by the Environmental Protection Agency. No statements were published relating to northern sea lions because only one had been reported taken since the general permit was issued in 1981 and the NMFS considered the probability of other incidental takings too remote to warrant its concern. In addition, it was noted that northern fur seals from the Pribilof Islands could not be included in the proposed permit regulation because of a separate agency action to list the stock as depleted, thereby precluding issuance of a taking permit under the MMPA.³ Thus, the proposed regulation dealt solely with the incidental taking of Dali's porpoise.⁴

On December 1-7, 1986, a formal rule-making hearing on the permit request and proposed regulation was held before an Administrative Law Judge (“AU”) of the United States Department of Commerce. After careful consideration of a voluminous record, the ALJ recommended issuance of a five year permit to the Federation allowing the incidental taking of 1,750 Dali’s porpoise during 1987 with a 5% yearly reduction over the following four years, and 45 northern fur seals annually.⁵ The decision to recommend the inclusion of northern fur seals was arrived at during the course of rulemaking when it was learned that the Federation was seeking permission to take northern fur seals from the Commander Island stock, not from the Pribilof Island stock which was thought to be depleted.⁶ The ALJ also noted that sea lions, harbor porpoise, Pacific white-sided dolphin, northern right whale dolphin, and killer whales are incidentally, although infrequently, taken during salmon gillnet fishing and that the Federation had applied in its permit for the taking of northern sea lions. The ALJ concluded that since there was virtually no scientific data on the record concerning these species, either because the Federation had not applied for such takings in its permit or the NMFS had not included them in the Federal Register notice,⁷ the Federation was prohibited from taking these species.⁸ In addition, the AU made findings and recommendations relating to the terms and conditions attaching to the permit and further research needs.

Pursuant to rulemaking procedures, the Secretary then reviewed the record developed during the formal hearings, the AU’s recommended decision, the exceptions filed thereto, and the Final Environmental Impact Statement, and issued a final decision. The final rule provided for a general permit to be issued under the MMPA to the Federation allowing “an aggregate taking during the three year permit period of no more than 789 Dali’s porpoise in the Bering Sea and 5,250 in the North Pacific Ocean, of which no more than 448 may be taken in the Bering Sea and no more than 2,494 may be taken from the North Pacific Ocean in any single calendar year.” Regulations Governing the Taking and Importing of Marine Mammals, 52 Fed.Reg. 19,874 (1987). With regard to the northern fur seals, the Secretary determined that an incidental take permit could not be issued under the MMPA because insufficient information existed on the record to ascertain whether the Commander Island population was at the minimum level of its optimum sustainable population. Id. at 19,-875. Further, he ruled that the “incidental taking of northern fur seals, like the taking of northern (Steller) sea lions, harbor porpoise, Pacific white-sided dolphin, northern right whale dolphin, and killer whales is prohibited by the Marine Mammal Protection Act.” Id. at 19,878.⁹

Analysis

The Federation’s commercial salmon fishing in the U.S. EEZ is conducted with the use of gillnets. Gillnet fishing involves setting out nylon nets approximately nine miles long and 26 feet deep at dusk using small fleets of motor boats. The nets drift freely near the surface where salmon and marine mammals, primarily Dali’s porpoise, feed during the night. These fish and mammals become ensnared in the drifting nets. The next morning motor boats retrieve the nets and haul in whatever catch has been ensnared in the nets.

As is readily apparent, this method of fishing does not permit discrimination between which species of fish and mammals will be ensnared and which will not. Consequently, although the Federation actively seeks to catch only salmon, marine mammals protected by the MMPA end up as unintentional victims of salmon gillnet fishing because of the nature of the fishing gear and techniques used. This result is absolutely prohibited by the MMPA unless, pursuant to the requirements of the Act, the Secretary of Commerce specifically grants permission for the taking of marine mammals incidental to commercial fishing.¹⁰ 16 U.S.C. § 1371(a)(2).

The permit at issue here grants the Federation permission to take a specified quota of Dali’s porpoise incidental to commercial gillnet salmon fishing. No other marine mammal species are included within the permit. Although Dali’s porpoise is the protected marine mammal primarily affected by the Federation’s fishing, it is foreseeable that takes of northern fur seals, northern sea lions, harbor porpoises, Pacific white-sided dolphins and killer whales will occur. Since the taking of any of these other marine mammals without a permit is absolutely prohibited by the MMPA, the legitimacy of the permit issued here comes under scrutiny. The MMPA must be analyzed to determine whether the Secretary of Commerce may legally issue a permit allowing incidental taking of one protected marine mammal species knowing that other protected marine mammal species will be taken as well.

Congress, by enacting the MMPA, put into effect a moratorium on the taking of marine mammals. The term “moratorium” is defined by the Act to mean “a complete cessation of the taking of marine mam-mals_” 16 U.S.C. § 1362(7) (emphasis added).¹¹ Since June 9,1981, this moratorium has applied to Japanese commercial fishing in the U.S. EEZ. Section 1377 of the MMPA requires the Secretary of Commerce to enforce the provisions of the Act and implementing regulations promulgated thereunder.

Under a limited exception to this moratorium, the taking of marine mammals incidental to commercial fishing operations may be allowed. 16 U.S.C. § 1371(a)(2). Before such a permissible taking can occur under this exception, two statutory requirements must be met: the taking must be authorized by regulations promulgated through formal rulemaking proceedings and a permit issued by the Secretary of Commerce; the taking must meet the requirements of the MMPA and be consistent with the primary goal of protecting marine mammals. See id.

Under the MMPA, before a permit authorizing a taking may be issued, the Secretary “must be assured that the taking ... is in accordance with sound principles of resource protection and conservation as provided in the purposes and policies of this chapter_” 16 U.S.C. § 1371(a)(3)(A). The guiding principles of resource protection and conservation are set out in 16 U.S.C. §§ 1361(2) and 1361(6). Section 1361(2) provides:

[Marine mammal] species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population. ...

Section 1361(6) reads in relevant part as follows:

[I]t is the sense of Congress that [marine mammals] should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat.

Thus, it is clear that “[t]he Act was to be administered for the benefit of the protected species rather than for the benefit of commercial exploitation.” Committee for Humane Legislation, Inc. v. Richardson, 540 F.2d 1141, 1148 (D.C.Cir.1976).

Consonant with these principles, the MMPA provides a scheme to determine the number and kind of marine mammals which can be taken incidental to commercial fishing operations. Under this scheme, the Secretary is obligated to determine that the permit applicant has carried its burden of proving that the taking sought does not disadvantage the species involved and is consistent with the policies and purposes of the Act. The Secretary, thus, must first determine that the requested taking will not be to the disadvantage of the affected species and population stocks. 16 U.S.C. § 1373(a). Pursuant to this determination and in conjunction with the formal rule-making proceedings, the Secretary must publish statements on population levels and the expected impact of the proposed regulations on the optimum sustainable population of the affected marine mammal species. 16 U.S.C. § 1373(d). Any decision the Secretary makes must be consistent with the MMPA “immediate goal” that

the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishery operations be reduced to insignificant levels approaching zero mortality and serious injury rate....

16 U.S.C. § 1371(a)(2).

While the Act may not prohibit issuance of a permit where there is only a very remote possibility that marine mammals for which an optimum sustainable population has not been determined may be taken incidental to commercial fishing, such a situation is clearly not the case here. In its original permit application the Federation requested that 460 fur seals be allowed to be taken annually incidental to commercial salmon fishing in the U.S. EEZ.¹² Although there were indications the taking might be less, it is readily apparent that the taking of these marine mammals is not merely a remote possibility but a certainty.¹³

In his final decision, the Secretary concluded that it was not possible to make the required finding that the northern fur seal population from the Commander Island stock is within its optimum sustainable population level. The Secretary found the evidence unclear and that a “significant dispute” existed as to whether it was above the minimum level of its optimum sustainable population. It could not be determined, therefore, that this protected stock would not be disadvantaged by takings incidental to the Federation’s fishing operations in the U.S. EEZ. As to the Pribilof Island population, the Secretary found it was depleted. Thus, in neither case could findings which are an absolute requirement for the issuance of a permit and waiver of the MMPA be made.¹⁴ Yet the Secretary, despite his inability to determine whether and to what extent northern fur seals would be disadvantaged by the Federation’s fishing operations, issued the permit taking the position that as long as it did not authorize the taking of northern fur seals he had complied with the MMPA. The result was, in effect, that the permit allowed the Federation to take protected marine mammals for a price — the civil penalties imposed for such takings.

This is a result that the MMPA does not countenance. The MMPA effects a moratorium on the taking of marine mammals. Congress decided to undertake this decisive action because it was greatly concerned about the maintenance of healthy populations of all species of marine mammals within the ecosystems they inhabit. Exceptions to this moratorium clearly evidence a concern with the relationship between the activity engaged in and its effect on marine mammals and their ecosystem. It is the duty of the Secretary to take a systemic view of an activity's effect on marine mammals. A view that the permit process functions merely to determine which takes will be exempted from civil penalties is inconsistent with this duty because it allows — subject to the civil penalty price — illegal takings of other protected marine mammals.

The Secretary has no authority, by regulation or any other action, to issue a permit that allows conduct prohibited by that Act. Nonetheless, the Secretary chose to disregard these incidental takings as “negligible,” an undefined and ambiguous standard at best. The MMPA, however, does not provide for a “negligible impact” exception to its permitting requirements where incidental takings are not merely a remote possibility but a certainty.

As enacted, section 1371(a)(4) creates a narrow exception for incidental, but not intentional, takings having a negligible impact on the species involved “by citizens of the United States while engaging in commercial fishing operations,....” The Secretary is not authorized to extend this flexibility to the Japanese nor is he authorized to create a new undefined statutory exception under the heading of “negligible,” which clearly has the effect of avoiding the strictures of the MMPA and congressional intent. Practical considerations or unavailability of information is no excuse. If the Secretary believes the Act needs amendment, then it is Congress he must address. The horse must stay ahead of the cart.

Furthermore, Congress has provided one statutory relaxation of the MMPA’s otherwise strict moratorium on takings except as authorized in section 1371(a). Section 1371(a)(2) was amended in 1981 to read:

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 serious injury and mortality rate; provided that this goal shall be satisfied in the case of the incidental taking of marine mammals in the course of seine fishing for yellowfin tuna by a continuation of the application of the best marine mammal safety techniques and equipment that are economically and technologically practicable.

No similar language was included in the 1982 amendment of section 1034, which reauthorized the Federation permit for 1984-87. It thus appears that Congress did not intend to loosen MMPA requirements in order to accommodate Federation needs, as it did for the tuna industry.

The MMPA does not allow for a Solo-monic balancing of the animals’ and fisheries’ interests such as the Secretary attempted.¹⁵ The interest in maintaining healthy populations of marine mammals comes first and the Secretary cannot ignore the fur seals. He can include the northern fur seals in the permit only if he makes the requisite findings. Lacking such findings the permit cannot issue. Moreover, he may not allow the Federation merely to pay a price for taking protected marine mammals; and he must face up to the taking of other marine mammals the record shows will also inevitably occur if gillnet fishing is permitted.

Conclusion

Thus, we hold that the permit, as granted to the Federation, is contrary to the requirements of the MMPA in that it allowed incidental taking of various species of protected marine mammals without first ascertaining as to each such species whether or not the population of that species was at the OSP level. If it is appropriate to grant foreign commercial fishermen some leeway to take marine mammals incidentally in carrying out their commercial fishing operations for salmon, it is for the Congress, not the Secretary to decide. Past administrative practice that is inconsistent with the purpose of an act of Congress cannot provide an exception and the moratorium must still be fully upheld in this situation. See FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981).

Affirmed and remanded for further proceedings consistent with this decision.

1 . Regulations Governing the Taking and Importing of Marine Mammals, 52 Fed.Reg. 19,874 (1987).

2 . The term "optimum sustainable population”, as defined in 50 C.F.R. § 216.3 (1986), means "a population size which falls within a range from the population level of a given species or stock which is the largest supportable within the ecosystem to the population level that results in maximum net productivity.”

3 . The NMFS proposed to designate the Pribilof Island population of North Pacific fur seals as depleted under the MMPA on December 22, 1986. North Pacific Fur Seal — Pribilof Island Population; Designation as Depleted, 51 Fed. Reg. 47,156 (1986).

4 . The initial proposed rule would have permitted the annual incidental taking of 5,500 Dali’s porpoise. 51 Fed.Reg. 29,674, 29,675 (1986).

5 . Subsequent to the AU's recommendations, the NMFS published a notice of amendment to the proposed rule which would have permitted the Federation to take annually up to 450 northern fur seals incidental to commercial fishing. Regulations Governing the Taking and Importing of Marine Mammals, 52 Fed.Reg. 2,566 (1987).

6 . At the time the application was received and the initial proposed regulation noticed, the NMFS believed that the permit sought permission to take northern fur seals from the Pribilof Island stock, not from the Commander Island stock. 51 Fed.Reg. at 29,676.

7 . Although the Federation requested a taking quota for northern sea lions, the original proposed rule did not include this species because the NMFS believed that the probability of incidental taking of northern sea lions was too remote to warrant consideration. Id.

8 . The Secretary in his 1981 final decision authorizing the issuance of a permit to the Federation ruled that “[t]he permit and regulations allow no takings of harbor porpoises, Pacific white sided dolphin or killer whale. Takings of these marine mammals are in violation of and subject to prosecution under the MPA.” 46 Fed.Reg. 27,056, 27,058 (1981). That permit, however, did allow for the annual taking of 25 northern sea lions.

9 . The Secretary believed that the Federation was trapped in unfortunate circumstances by the strictures of the MMPA. After reviewing the record, he felt that only a negligible number of mammals, in terms of impact on the species and stocks, not covered by the permit would be incidentally taken and that some of these mammal stocks did not "require the absolute protection provided by the MMPA.” 52 Fed.Reg. at 19,878. Therefore, the Secretary felt that civil penalties in these circumstances served no useful purpose and intended to "seek amendment of the MMPA to permit incidental, but not intentional, takings of small numbers of marine mammals, by vessels engaged in commercial fishing, if such takings will have a negligible impact on the species and stocks.” Id. This type of exemption for incidental, but not intentional, takings having a negligible impact on the species involved is currently limited to citizens of the United States. See 16 U.S.C. § 1371(a)(4)(A).

10 .The Secretary defines the term "incidental catch” to include the taking of a marine mammal "as a consequence of the steps used to secure the fish in connection with commercial fishing operations” 50 C.F.R. § 216.3 (1986).

11 . In turn, the Act defines "take” to mean "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C. § 1362(12). The Secretary further interprets the term "harass” to include "the restraint or detention of a marine mammal, no matter how temporary.” 50 C.F.R. § 216.3 (1986).

12 . NMFS’s regulations require that all applications for a general permit to take marine mammals incidental to commercial fishing operations include:

A statement identifying the marine mammals and numbers of marine mammals which are expected to be taken under the general permit.

50 C.F.R. § 216.24 (emphasis added).

13 . When he granted the permit to the Federation the Secretary was informed and knew that species of marine mammals other than Dali’s porpoise, a species at the OSP level, would inevitably be taken incidental to the Federation’s salmon fishing operations. These included northern fur seals from the Pribilof Island stock, a depleted species protected under the MMPA, as well as other species as to which no OSP finding one way or the other had been made — northern fur seals from the Commander Island stock, harbor porpoise, northern right whole dolphin, Pacific white-sided dolphin, and other dolphin, as well as various sea lions.

14 .It is necessary to know the OSP in order to determine whether or not an activity will "disadvantage" the marine mammals involved. Therefore, Congress required the Secretary to act only on the basis of the very knowledge which he admits is unknown: the effect of any proposed taking on optimum sustainable population levels.

15 . In Committee for Humane Legislation, Inc. v. Richardson, this Court stated that the "[b]alanc-ing of interests ... is entirely a legislative decision, dictated at present by the terms of the Act." 540 F.2d at 1151 n. 39. Thus, the Secretary's concern for potential harm to Japanese commercial fishing or our system of international treaties should be addressed to Congress.