such incidental taking could be permitted only after promulgation of the same sort of regulations and issuance of the same sort of permits that would normally follow a waiver of the moratorium.104/ In addition, after establishing that authority, the Act stated the following: In any event it shall be the immediate goal that the incidental Much like one of its criteria for defining "depleted" species, however, the Act failed to specify what level of take would be "insignificant" or over what period of time the goal was to be obtained.106/ When the Secretary promulgated regulations governing the taking of marine mammals incidental to tuna purse seining operations and issued a general permit for such taking to the American Tunaboat Association, in 1974 and 1975, several environmental organizations filed suit to have those regulations and permits invalidated. The plaintiffs' claims were upheld in a decision by Judge Charles Richey in May, 1976.107/ Although Judge Richey's decision eloquently articulated the view that the "one basic purpose" of the Act was "to provide marine mammals, especially porpoise, with necessary and extensive protection against man's activities," the actual basis for his decision 104/ Id. $1371 (a) (2). 105/ Id. 106/ 107/ See text accompanying note 37. Committee for Humane Legislation, Inc. v. Richardson, 414 was very narrow. 108/ That is, the regulations pursuant to which the general permits were issued had been promulgated without the required statement of estimated existing population levels and of expected impact on the optimum sustainable populations of the affected species and stocks.109/ The Secretary contended that the required information had not been provided because it was simply not known, and that the Act's standard of "best scientific evidence available" was met where the only available information was insufficient to provide the required statements. Judge Richey refused to accept that interpretation, holding instead that the best scientific evidence standard required the Secretary to have affirmative scientific evidence that any proposed taking of marine mammals would not be to their disadvantage.110/ As an independent, though obviously related ground for his decision, the Judge found that the American Tunaboat Association had failed to show in its permit application that the proposed taking would be "consistent with the purposes" of the Act.111/ Finally, because the general permit failed to state the "number and kind of animals" which it authorized to be taken, it was contrary to a further express requirement of the Act.112/ The effect of Judge Richey's decision would have been to halt all tuna fishing by means of setting on porpoise if it had been made immediately effective. However, its effective date was postponed by some three weeks to provide adequate time for its implementation. During this period, the Court of Appeals stayed the effect of the lower court ruling until it had itself 108/ Id. at 306. 109/ See text accompanying note 86. 110/ 414 F. Supp. at 311, n. 32. 111/ Id. at 312-13. 112/ 16 U.S.C. $1374(d) (3) (Supp. IV 1974). ruled on the case. At the same time, within days of Judge Richey's decision, proposed legislation had been introduced in Congress to overturn it, and hearings were promptly held.113/ As part of its effort to persuade the Court of Appeals to stay Judge Richey's ruling, the government agreed to amend the general permit to impose a ceiling of 78,000 porpoises which could be taken in 1976. That quota was published officially on June 11, 1976.114/ Nearly two months later, the Court of Appeals affirmed the Richey decision in all respects.115/ However, feeling that the impact of its decision could be "disastrous to the commercial fishermen operating under the general permit," the Court continued the stay of the district court order until January 1, 1977 in order to give the Secretary time to meet the requirements of the Act.116/ Although the Court of Appeals decision allowed setting on porpoise to continue, it also let stand the quota imposed by the Secretary only two months before.117/ When that quota was reached in October, the Secretary announced that the American Tunaboat Association's general permit would no longer be valid.118/ Immediately, certain tuna fishermen went into court and obtained a temporary restraining order against that 113/ An account of the prompt legislative response is found in Comment, Federal Courts and Congress Review Tuna-Porpoise Controversy, 6 ELR 10147 (1976). 114/ 115/ 116/ 117/ 118/ See 41 Fed. Reg. 23680 (June 6, 1976). Committee for Humane Legislation, Inc. v. Richardson, 540 The Court was unsympathetic to the Secretary's claim that The Court of Appeals did remand to the district court the action.119/ Their request for a preliminary injunction was denied, however, in The Motor Vessel Theresa Ann v. Richardson.120/ The affirmance of that decision by the Ninth Circuit Court of Appeals and the failure of Justice Rehnquist to order emergency relief thus brought to an end the long battle over purse seining in 1976.121/ For the 1977 season, a similar battle seems possible. Because the decision by Judge Richey left the Secretary insufficient time in which to promulgate new regulations pursuant to established procedures, special emergency procedures have been devised so as to hasten the rulemaking process. 122/ Because even under those special procedures it will not be possible to issue any permits prior to mid-February, 1977, the Secretary has proposed to amend the 1976 permit so as to permit some incidental taking during the initial months of 1977.123/ Substantively, the proposed 1977 regulations mark a significant reduction from the 1976 quota and are, for the first time, based on published estimates of existing populations and OSP levels for each of the population stocks affected. 124/ Accordingly, it seems likely that any future challenge to those regulations will focus not on the narrow procedural questions that have thus far occupied the courts, but rather on the true substantive components of the Act's population policy. One final aspect of the incidental taking issue that seems likely to pose continuing problems is its 119/ See 41 Fed. Reg. 47254 (Oct. 28, 1976). American Tunaboat Association v. Richardson, No. 76-3309 (9th Cir., Nov. 11, 1976). 120/ 7 ELR 20065 (S.D. Cal. Nov. 2, 1976). 121/ 122/ 41 Fed. Reg. 43550 (Oct. 1, 1976). 123/ 41 Fed. Reg. 49859 (Nov. 11, 1976). 124/ See 41 Fed. Reg. 45015 (Oct. 14, 1976). enforceability. Without federal observers aboard fishing boats, compliance with quotas or total prohibitions cannot be assured. During the initial two-year research period, the Act authorized the Secretary, through his agents, "to board and to accompany any commercial fishing vessel . . ., there being space available, on a regular fishing trip for the purpose of conducting research or observing operations in regard to the development of improved fishing methods and gear."125/ Thereafter, the Secretary must rely on the Act's authorization to impose any appropriate terms or conditions in permits he issues under the Act.126/ Pursuant to that authority, the Secretary has required permit holders to permit federal observers aboard their vessels.127/ The result, however has been to require the removal of such observers when the permit authorizing them is revoked or otherwise becomes invalid as a result of judicial action or upon attainment of an applicable quota.128/ The only enforcement mechanism available to the Secretary after removal of the observers is the authority conferred by the Act to search any vessel under warrant or without a warrant if there is "reasonable cause to believe" that it or any person on board may have violated the Act.129/ 125/ 16 U.S.C. $1381(d) (Supp. IV 1974). 126/ Id. §1374(b) (2) (D). 127/ See 50 C.F.R. $216.24(f) (1975). 128/ 129/ See 41 Fed. Reg. 21783 (May 28, 1976) and 41 Fed. Reg. Id. $1377(d) (2). |