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Did United States v. Hayashi Fail to Provide a Safe Harbor for Marine Mammals Under the Marine Mammal Protection Act?

April Fisher, Amber A. Bell


27 Golden Gate U.L. Rev. 67 (1997)
Publish Date:
Spring 1997
Place of Publication: Golden Gate University Law Review
Printable Version

Did United States v. Hayashi Fail to Provide a Safe Harbor for Marine Mammals Under the Marine Mammal Protection Act?

 

Copyright (c) 1997 Golden Gate University (reprinted with permission)

Reprinted with permission. This article may not be reproduced by any means, including any methods of electronic and photographic reproduction or web-site posting without the express permission of Golden Gate University Law Review.

I. INTRODUCTION

Dolphins, porpoises, whales, and other marine mammals have been exploited and their existence threatened due in large part to the practices of the fishing industry. n1 The boldest step that the American government has taken thus far to protect marine mammals is its enactment of the Marine Mammal Protection Act of 1972 (hereinafter "MMPA"). n2 Even with the enactment of the MMPA, marine mammals remain unprotected due to lack of enforcement and judicial interpretations that limit the scope of the MMPA.

This note focuses on one such instance where a court erred in interpreting a key term in the MMPA. In United States v. Hayashi, n3 the Ninth Circuit, sitting en banc, found that a fisherman who shot at porpoises to deter them from his catch did not commit a "taking" under the MMPA. n4 The court held that to constitute a criminal "taking" under the MMPA, harassment of a marine mammal must entail direct and serious disruptions of normal mammal behavior. n5

This decision may result in further exploitation and suffering of marine mammals.

II. BACKGROUND OF THE MARINE MAMMAL PROTECTION ACT

The impact humans have upon marine mammals has "ranged from what might be termed malign neglect to virtual genocide." n6 Marine mammals have been "shot, blown up, clubbed to death, run down by boats, poisoned, and exposed to a multitude of other indignities, all in the interests of profit or recreation, with little or no consideration of the potential impact of these activities on the animal populations involved." n7 One of humankind's most harmful impacts upon marine mammals results as a consequence of tuna fishing with purse seines. n8

In response to these practices, Congress enacted the Marine Mammal Protection Act for the purpose of maintaining marine mammals at healthy population levels. n9 The MMPA establishes that marine mammals, and the marine ecosystem upon which they depend for survival, require protection from human activities. n10 The MMPA covers all mammals who spend part of their lives in the sea. n11 The largest category of animals protected by this act is the Cetaceans, which includes whales, dolphins, and porpoises. n12

In passing the MMPA, Congress recognized that "man's thumb is already on the balance of Nature," and decent treatment for the marine mammals may well be in the long-term best interests of man. n13 To achieve this goal, the MMPA prohibits the "taking" of any marine mammal by any person or vessel or other conveyance subject to the jurisdiction of the United States. n14 Under the MMPA, the term "take" is defined as "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." n15 The goal of the MMPA is to reduce such takings to insignificant levels and to greatly reduce the mortality and serious injury rate. n16

III. FACTS & PROCEDURAL HISTORY

On January 24, 1991, David Hayashi, a part-time commercial fisherman n17 and life-time resident of Hawaii, was fishing for Ahi n18 off the coast of Waianae. n19 As he fished, a group of four porpoises began eating Ahi off his fishing lines. n20 Hayashi fired two rifle shots to the immediate rear of the animals in an attempt to deter the porpoises from his catch. n21 Neither of these shots struck the porpoises. n22

A state enforcement officer witnessed the shots fired by Hayashi and reported the incident to the National Marine Fisheries Service (hereinafter "NMFS"). n23 In February 1991, NMFS agents interviewed Hayashi and his son (who had been present on the boat when Hayashi fired at the porpoises) regarding the incident n24 and obtained their written statements. n25 A criminal information was subsequently filed, charging Hayashi with "knowingly taking a marine mammal" in violation of the MMPA. n26

In July 1991, the state proceeded against Hayashi before a magistrate judge. n27 Hayashi unsuccessfully sought dismissal of the charges on a theory that the MMPA, as applied, was unconstitutionally vague. n28 A trial ensued, based on the stipulated facts received into the record. n29 The magistrate judge convicted Hayashi of intentionally taking marine mammals, as prohibited by the MMPA, and sentenced him to one year of unsupervised probation, together with a $ 500 fine. n30

Hayashi appealed to the United States District Court for the District of Hawaii, renewing the unconstitutional vagueness argument asserted in his motion to dismiss and raising a claim of insufficient evidence. n31 The district court affirmed his conviction. n32 Hayashi then brought an appeal before the Ninth Circuit Court of Appeals, asserting the same grounds presented before the district court. n33 The Ninth Circuit reversed the conviction, holding that there was insufficient evidence to find a criminal "taking" by "harassment" under the MMPA. n34 The court did not reach the issue of unconstitutional vagueness. n35

IV. COURT'S ANALYSIS

A. Majority Opinion

In United States v. Hayashi, n36 the Ninth Circuit was asked to determine whether the defendant's act of intentionally shooting in the vicinity of porpoises in an attempt to deter them from eating Ahi off of his fishing line fell within the MMPA's proscription against the "taking" of marine mammals. n37 The Ninth Circuit, in its majority opinion, held that the district court, which had affirmed a magistrate judge's conviction of the defendant, committed two errors. n38 First, the actus reus, or criminal act itself, was improperly defined because the court had relied upon an improper statute to formulate its definition of "take" under the act. n39 Second, the mens rea, or the mental element for the crime charged, was not properly limited to conduct which was knowing and intentional. n40 After setting forth and explaining the errors below, the court went on to determine that there was insufficient evidence to convict Hayashi of "knowingly taking" a marine mammal in violation of the MMPA. n41 Thus, the Ninth Circuit reversed Hayashi's conviction. n42

1. Statutory Interpretation: Defining the Actus Reus

To correctly define the actus reus the Ninth Circuit looked first to the statute under which Hayashi had been charged, 16 U.S.C. <sect> 1372(a)(2)(A). n43 This statute prohibits the "taking" of a marine mammal in United States waters. n44 Noting that the MMPA defines "take" as "to harass, hunt, capture, or kill or attempt to harass, hunt, capture, or kill," n45 the court determined that only the terms "harass" and "attempt to harass" were potentially applicable to Hayashi's conduct. n46 At the time Hayashi committed the act of firing at the porpoises, the term "harass" was not further defined within the MMPA or its companion administrative regulations. n47 Nevertheless, regulations issued under the Endangered Species Act defining "take" with regard to porpoises were available and utilized by the Ninth Circuit. n48 These regulations state that the intentional or negligent "disturbing" or "molesting" of a marine mammal constitutes a "take." n49 However, the Ninth Circuit Court found these examples of "taking" to be equally vague, and determined that a clearer definition of "taking" by "harassment" was to be ascertained by referring to the context of the statute. n50

The term "harass," the court noted, is grouped with "hunt," "capture," and "kill" as forms of prohibited "taking." n51 Relying on the principle that words which are grouped together in a list should be given similar meaning, n52 the court determined that each of these terms "involved direct and  significant intrusions upon the normal, life-sustaining activities of a marine mammal." n53 Therefore, the Ninth Circuit concluded that similar to those terms, "harass" must involve a similar level of intrusion. n54 As additional support for this conclusion, the court next looked to the very regulation, 50 C.F.R. <sect> 17.3, which it determined the magistrate judge and district court had improperly relied upon in formulating their definition of "take." n55 The court postulated that although <sect> 17.3 implements the Endangered Species Act, a statute distinct and separate from the MMPA, the regulations could nevertheless prove to be useful as analogous authority to aid in interpreting the terms from the MMPA. n56 Section 17.3 defines "harassment" which constitutes a "taking" to require a significant disruption of "normal behavioral patterns" including breeding, feeding or sheltering. n57 The court noted that this definition emphasized protecting "natural" animal behavior, not abnormal marine mammal activity. n58 This definition, the court held, was consistent with the essence of the MMPA which strove to preserve marine mammals as essential components of the "natural" marine ecosystem. n59 The court found that <sect> 17.3 did not support an interpretation of "harassment" which prohibits disturbing marine mammals who are endangering human life or property. n60 Thus the interpretation of "harass" propounded by the court would look at the act of the alleged harasser and also consider the act in which the marine mammal was engaged. n61 A "taking" by "harassment," according to the majority of the Ninth Circuit, encompassed "only direct and serious disruptions of normal mammal behavior."

n62

2. Application of the Court's Definition of the Actus Reus to the Conduct Underlying Hayashi's Conviction

The Ninth Circuit's definition of the actus reus limited criminal conduct to "direct and serious disruptions of normal mammal behavior." n63 In reviewing the conduct of Hayashi, the court bifurcated its analysis, looking first at whether the mammals at issue had been disrupted from "normal" behavior, and subsequently at the reasonableness of Hayashi's conduct. n64

a. The Requirement that "Normal" Behavior Patterns Be Disrupted

At the moment Hayashi fired shots at the porpoises, the animals were eating bait and hooked fish from his fishing lines. n65 Eating fish and bait off a fisherman's lines, the majority asserted, was "not a part of the porpoise's normal eating habits." n66 Furthermore, no evidence was presented establishing that the animals had in fact been deterred from the lines or even reacted to Hayashi's shots. n67 Thus, the Ninth Circuit concluded that the evidence failed to establish that Hayashi's shots had deterred the porpoises from "normal" behavior patterns. n68

b. The Requirement of a "Direct and Serious" Disruption

With regard to the requirement that the defendant's conduct result in a direct and serious disruption, the court summarily stated that "Hayashi's conduct was not the kind of direct, serious disruption of a porpoise's customary pursuits required to find a criminal 'taking.' Reasonable acts to deter porpoises from eating fish or bait off a fisherman's line are not  criminal under the MMPA." n69

Thus, having found that there was no "direct and serious disruption of normal mammal behavior," the Ninth Circuit concluded that the MMPA and the regulations implementing the Act failed to reach Hayashi's conduct. n70

3. Squaring the Court's Interpretation with Subsequent Regulations

Proscribing the Feeding of Marine Mammals

Subsequent to the incident for which Hayashi was prosecuted, the NMFS promulgated regulations adding "feeding or attempting to feed" to the definition of "harass" found in 50 C.F.R. <sect> 216.3. n71 This amendment to the definition of "harass" addressed concerns that people feeding marine mammals disrupts their natural feeding patterns, potentially conditioning them to approach watercraft, and thereby increasing the likelihood "that they will become entangled in fishing gear, be struck by vessels, or be shot, poisoned, or fed foreign objects." n72 The court determined that this amendment deterred precisely that behavior which Hayashi had himself deterred by firing the rifle shots. n73 The court concluded that were it to hold that Hayashi's behavior constituted "harassment," then under the new regulations, a fisherman would be guilty of "harassment" by "feeding" if he did not deter a marine mammal from feeding off of his fishing lines. n74 But at the same time, a fisherman would be guilty of "harassment" by "disturbing" if he took steps to deter such acts. n75 For these reasons, the court concluded, the new regulation supported their definition of "harass" as well as their interpretation that the MMPA did not reach Hayashi's conduct. n76

B. Dissent

Judge Browning dissented from the analysis and conclusions of the majority, finding that they represented both bad law and bad policy. n77 He stated that the goal of the Marine Mammal Protection Act is the "optimal protection" of marine mammals from human activities which threaten their survival. n78 Thus, he would not limit the scope of the MMPA to human activity which results in the certain physical destruction or injury of marine mammals. n79 Rather, Judge Browning found the MMPA expressed a sweeping statement of public policy and was intended by Congress to regulate a wide variety of human activity, including those activities which create the "mere potential" for harm. n80 In Browning's view, "taking" under the MMPA encompassed Hayashi's act of intentionally firing rifle shots into the water near porpoises which were feeding from bait and tuna hooked on fishing lines. n81 Browning would  affirm Hayashi's conviction. n82

1. A Broad Definition of "Take" is Necessary to Effect Congressional Intent

Judge Browning argued that Congress intended "taking" to be broadly defined. n83 He claimed that as a key jurisdictional term within the act, its "cramped" construction would "restrict most aspects of the scheme envisioned by Congress for the protection of marine mammals." n84 Browning pointed out that the MMPA's substantive provisions commence with an absolute moratorium on the "taking" of marine mammals. n85 The Secretary is delegated the authority to regulate both public and private conduct falling within this moratorium; his power is confined by the meaning assigned to the term. n86

When "take" is read restrictively, as it is under the majority's formulation, the scope of activities encompassed within the Act's prohibitions is limited, as is the Secretary's power to protect endangered marine mammals. n87 Judge Browning asserted that such a construction would be inconsistent with Congress's stated intent to provide "optimal" marine mammal protection. n88 On the other hand, Browning countered, a broad definition of "take" allows the necessary flexibility for effective administration and is consistent with protections envisioned by Congress. n89

2. The Statutory Language, Legislative History, and Secretary's

Determinations Support the Broad Interpretation of "Taking" by "Harassment" under which Hayashi's Conduct Is Proscribed

Judge Browning next looked to the MMPA, its companion regulations, and the Secretary's interpretation of the term "taking." n90 He concluded that these sources supported an interpretation of "take" sufficiently broad to encompass Hayashi's conduct. n91

Noting, as had the majority, that "take" is defined by the terms "harass," "hunt," "capture," and "kill," Browning determined that Congress had intended to regulate human contact with marine mammals, "progressing in severity" from mere "harassment" to the ultimate destruction, the "killing" of the mammal. n92 "Harass," he found, was not intended to be  submerged into a singular meaning encompassing the whole of the statutory phrase. n93 It must, he concluded, be read to broaden the definition of "taking" and the scope of the Act itself. n94

In support of this conclusion, Judge Browning noted that Congress had previously identified the "intentional pursuit of marine mammals" and the use of "acoustic deterrent devices" as "takings" by "harassment" proscribed by the Act. n95  Furthermore, turning to 50 C.F.R. <sect> 216.3, Judge Browning cited regulatory examples of "taking," including the mere restraint or tagging of a marine mammal. He found these to be inconsistent with the majority's assertion that "harassment" contemplates only "direct and significant intrusions" upon"normal" mammal behavior. n96

Finally, Judge Browning reviewed exemptions and exceptions to the Act's broad proscriptions. n97 He concluded that the parties involved in enactmentand administration of the Act, as well as the parties governed by the Act, viewed "taking" as a broad concept, one broad enough, he asserted, to encompassthe conduct of Hayashi and support his criminal conviction. n98

Noting that the Secretary's authority includes discretionary approval of permit applications which include "takings" otherwise prohibited by the Act, Browning observed that permits were regularly requested and granted, authorizing conduct "no more intrusive" than photographic identification, vessel  approach, and the broadcast of underwater acoustic recordings. n99 Apparently, he concluded, the Secretary and the fishermen subject to this legislation considered such conduct to be within the Act's broad proscriptions. n100

Judge Browning also identified an exemption for commercial fishermen, allowing them to register with the Secretary for permission to intentionally "take" marine mammals in order to protect their catch, gear, or persons during the course of commercial fishing operations. n101 This exemption, he asserted, could only exist if such conduct were prohibited by the Act. n102 Browning argued that on its face, this exemption established that Hayashi's act of firing a rifle to scare away scavenging dolphins to defend his fishing catch fell within the MMPA's proscriptions. n103

V. CRITIQUE

The majority erred by narrowly defining "harassment" under the MMPA to include only those acts which directly and seriously disrupt normal marine mammal behavior. n104 The contention that "harass" should be more broadly interpreted is supported by clear statutory language, the legislative history of the MMPA, and the Secretary's regulations enforcing and interpreting the Act. n105 Furthermore, the majority erroneously employed the doctrine of noscitur a sociis when defining the term "harass." Consequently, the majority failed to give effect to the expressed intent of Congress by not giving "harass" its independent meaning as Congress intended. n106

A. The Plain Meaning of "Harass" Supports the Contention that Shooting at Porpoises Constitutes a "Taking" Under the MMPA

The starting point in statutory interpretation is to look at the plain language of the statute. n107 As the MMPA defines the term "take" to include the harassment of marine mammals, it is appropriate to look at the plain meaning of the term "harass" to determine its meaning under the MMPA. n108 One way to determine the plain meaning of a word is to look at the dictionary. n109

Webster's New Collegiate Dictionary defines "harass" as "to worry or impede by repeated raids" or "to annoy persistently." n110 Hayashi's firing two successive rifle shots at porpoises fits within the common definition of "harass." n111 Porpoises, as highly intelligent mammals, would feel worried or annoyed when in the close vicinity of rifle shots. n112

Thus, as Congress included "harassment" as a prohibited form of "taking" n113 and as Hayashi's actions toward the porpoises clearly fall within the plain meaning of harassment, Hayashi's conduct violated the MMPA. n114

B. The Legislative History of the MMPA Supports the Contention that Hayashi's Actions Constituted a "Take" Under the MMPA

A broad definition of "harass" is supported by the legislative history of the Marine Mammal Protection Act. n115 In the MMPA, Congress broadly defined "take" as "including harassing, hunting, capturing or killing any marine mammal or attempting to do so." n116 The term harass was included to broaden the scope of protections afforded to marine mammals, thereby ensuring the effectiveness of the MMPA. n117 This is evidenced by Congress's statement: "The definition of taking . . . includes the concept of harassment, and it is intended that this term be construed sufficiently broadly. . . ." n118

Additional examples of "taking" recognized by Congress in the legislative history also support the contention that the term "harass" is to be broadly defined. n119 Congress identified the "intentional pursuit" of a marine mammal, the "use of acoustic deterrence devices," and the "operation of motor boats" as examples that would "clearly constitute harassment." n120 It is hard to reconcile how use of an acoustic deterrence device "clearly constitutes harassment" yet, firing rifle shots in the vicinity where porpoises are swimming does not.

Congress' intent that "harass" be "construed sufficiently broadly" and the examples of actions that constitute harassment establish that Hayashi's act of shooting at the porpoises clearly falls within Congress' intended definition of "harassment" and thus, is a "taking" under the MMPA. This interpretation of "harass" is consistent with Congress' desire that "porpoises be given every reasonable protection." n121

C. Regulations Define "Take" B roadly to Include Acts That Disturb or Molest Marine Mammals - Firing at Porpoises Should Constitute a "Take" Under the MMPA

The regulations issued by the National Marine Fisheries Service that are applicable to the MMPA n122 offer additional support to the contention that Hayashi's violent acts toward the porpoises violated the MMPA. n123 Although these regulations do not define the term "harass," the regulations do define "take," at 50 C.F.R. <sect> 216.3, to include "the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal." n124

Studies on the cerebral cortex of Cetaceans show that porpoises are highly intelligent mammals. n125 The functions of the brain associated with "intelligence" are controlled within the cerebral cortex. n126 A high degree of convolution of the cerebral cortex connotes a high degree of cerebral functioning. n127 Studies reveal that the cerebral cortex of all Cetaceans is more convoluted than a human's. n128 Thus, if cortically mediated behavior is an adequate measure of intelligence, the similarity between the human cortex and the Cetacean cortex is indicative of high Cetacean intelligence. n129 Therefore, just as a human would be "disturbed" or feel "molested" if shot at, the porpoises swimming in the vicinity of Hayashi's shots would also feel disturbed and molested. n130 Since he disturbed the porpoises, Hayashi's actions fell within the regulatory definition of "take," thereby violating the MMPA.

The regulations in 50 C.F.R. <sect> 216.3 also call into question the majority's holding that "harassment" must entail a "direct and significant intrusion . . . upon the normal, life-sustaining activities of a marine mammal." n131 However, the Code of Federal Regulations <sect> 216.3 states that a detention "no matter how temporary" constitutes a "taking" under the MMPA.n132 The term "no matter how temporary" does not indicate a "direct and significant intrusion." Further, the majority's assertion that "harassment" must entail an intrusion upon a "lifesustaining activity" n133 is in direct conflictwith 50 C.F.R. <sect> 216.3, which states that the "collection of a dead animal" constitutes a "taking" under the MMPA. n134 By limiting "harassment" to activities that result in a "direct and significant intrusion upon the normal, life-sustaining activities," the majority ignored the broad meaning given to "take" by the administrative regulations implementing and interpreting the MMPA.

D. A Broad Interpretation of "Harass" is Supported by the Permits Issued by the Secretary Under the MMPA

As noted by Justice Browning in his dissent, the broad scope of "taking" is evidenced by the permits issued to allow conduct no more intrusive than Hayashi's shooting in the vicinity of porpoises. n135 The MMPA prohibits all taking of marine mammals with specified exceptions. n136 Under the MMPA, the Secretary's authority includes discretionary approval of permit  applications, authorizing conduct that constitutes "harassment." n137 Exercising this power, the Secretary issued permits authorizing "vessel approach, helicopter photogrammetry and photographic identification." n138 It is hard to reconcile how these activities have a "direct and significant" impact upon marine mammals, but firing rifle shots near porpoises would not.

E. The Ninth Circuit Erred In Employing the Doctrine of Noscitur a Sociis to Determine the Meaning of "Harass" Under the MMPA

By applying the doctrine of noscitur a sociis, n139 the Ninth Circuit narrowly interpreted the term "harass" under the MMPA. n140 The Ninth Circuit erred by employing this doctrine for two reasons. First, the doctrine is employed only when the legislative intent or meaning of the statute is unclear. n141 However, the legislative intent of including "harassment" as a form of "take" is not unclear or ambiguous. n142 Congress stated that "harassment" is to be "construed sufficiently broadly" so that "porpoises are given every reasonable protection." n143 Second, noscitur a sociis may only be used when the clear meaning of the word is doubtful. n144 As the plain meaning of "harass" may be found in the dictionary, its meaning is not doubtful. n145

Thus, as Congress' intent is unambiguous and the meaning of "harass" is not doubtful, the majority incorrectly applied the doctrine of noscitur a sociis to determine the meaning of "harass" within the MMPA. n146

The Ninth Circuit's error in employing the doctrine of noscitur a sociis is further evidenced by a recent Supreme Court decision. n147 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon n148 involved a dispute over whether logging activities that would kill or injure an endangered species amounted to "harm" to the species resulting in a "taking" under the Endangered Species Act (hereinafter "ESA"). n149 The Supreme Court declined to invalidate the Secretary of the Interior's regulation, finding that the Secretary has reasonably construed the term "harm" under the ESA. n150

In considering the lower court's decision, the Supreme Court held that the Ninth Circuit erred in applying the doctrine of noscitur a sociis. n151 The Supreme Court found that by employing this doctrine the Ninth Circuit had denied the word "harm" its independent meaning. n152 The Court explained that, due to its statutory context, Congress meant the term "harm" to serve a specific purpose by including it in the ESA. n153 The Court held that "harm" is distinct from the other words used to define "take" and the Ninth Circuit erred by employing noscitur a sociis because it essentially gave "harm" the same meaning as the other words in the definition. n154

Just as the Supreme Court in Babbitt held that the doctrine of noscitur a sociis was incorrectly applied to determine the meaning of "harm" under the ESA, n155 the Ninth Circuit erred in applying the doctrine to determine the meaning of "harass" under the MMPA. n156 In employing such a doctrine, the majority looked to the other words that constitute a "take" under the MMPA, such as "hunt," "capture," or "kill," without giving "harass" its own independent meaning. n157 The statutory context of "harass," as set forth in the MMPA, suggests that Congress meant the term to serve a specific function in the MMPA. n158 Using the Babbitt analysis, the legislative intent must be given meaning. n159 Therefore, the majority incorrectly applied the doctrine of noscitur a sociis to determine the meaning of "harass" and failed to acknowledge the legislative intent behind the MMPA.

F. The Proposed Guidelines to the MMPA'S 1994 Amendments Establish that Congress Intended to Prohibit the Type of Conduct Performed by Hayashi

In 1994, Congress amended certain provisions of the MMPA. n160 Specifically, Congress added an amendment to prohibit certain deterrent techniques used by fishermen that have a significant adverse impact on marine mammals. n161 As part of the 1994 Amendments, Congress directed the NMFS to develop and publish a list of guidelines on how fishermen could safely deter marine mammals. n162 The proposed guidelines prohibit the use of firearms and other devices that propel injurious projectiles for deterrent purposes, as their use has a significant adverse effect on the targeted marine mammals. n163

Before these proposed guidelines are adopted, they must first be submitted to individuals who have experience and knowledge of interactions with marine mammals and the use of deterrence devices. n164 However, if approved, the act of shooting a firearm where porpoises are swimming as a deterrent method would violate the MMPA. n165 These amendments give further support to the contention that Congress intended "harass" to be broadly interpreted to encompass violent acts such as Hayashi's.

VI. CONCLUSION

By narrowly defining what constitutes "harm" under the MMPA, the Ninth Circuit ignored the plain meaning of the term, the legislative history of the MMPA and the regulations interpreting the MMPA. n166 The Ninth Circuit's holding in Hayashi allows fishermen to harass marine mammals as long as the action does not seriously disrupt normal marine mammal behavior. Based on this holding, fishermen can intentionally shoot at mammals to save their catch without any liability under the MMPA. One must question whether this is the "protection from human activities" that Congress envisioned when it enacted the Marine Mammal Protection Act.

FOOTNOTES:

n1 When Congress enacted the Marine Mammal Protection Act dolphins and porpoises were endangered, as 250,000 porpoises were being slaughtered by the tuna industry each year. Laura L. Jones, Note, The Marine Mammal Protection Act and International Protection of Cetaceans, 22 Vand. J. Transnat'l L. 997, 99899(1989). In 1989, 300 dolphins each day were being killed by tuna fishers. Id. at 999.

n2 David M. Levin, Towards Effective Cetacean Protection, 12 Nat. Resources L., 549, 571 (1979).  The MMPA is codified at 16 U.S.C. <sect><sect> 1361-1421 (1994).

n3 United States v. Hayashi, 22 F.3d 859 (9th Cir. 1994) (rehearing en banc) (per Reinhardt, J., with whom Norris, J., joined; Browning, J., dissenting).

n4 Hayashi, 22 F.3d at 861.

n5 Id. at 864.

n6 H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144.

n7 Id. at 4144-45.

n8 Levin, supra note 2, at 551. Purse seine fishing is a procedure in which fishermen use dolphin to catch tuna. Because tuna associate with certain species of dolphin, fishermen look for dolphins to locate the tuna. Once spotted, fishermen herd dolphin and the tuna swimming beneath them into mile-long nets then close the nets around them. Once in the net, most dolphin panic and dive to the bottom where they get caught in the net webbing and drown. Elise Miller, Comment, The Fox Guarding the Henhouse: Conflicting Duties under the Marine Mammal Protection Act, 31 Santa Clara L. Rev. 1063, 1065-66 (1990-91). When the MMPA was enacted, it was estimated that between 200 to 400 thousand porpoises are caught and killed in tuna nets each year. H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4148.

n9 H.R. Rep. No. 970, 100th Cong., 2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 6154, 6155.

n10 H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4145. Congress found that "certain species and population stocks of marine mammal are, or may be, in danger of extinction or depletion as a result of man's activities." 16 U.S.C. <sect> 1361(1) (1994).

n11 Id. at 4148.

n12 Levin, supra note 2, at 553. Dolphin and porpoises are so similar physiologically, behaviorally and morphologically that the names are used interchangeably. Id. at 555. The names will therefore be used interchangeably throughout this note.

n13 H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4145.

n14 16 U.S.C. <sect> 1372(a)(1) (1994). The MMPA also prohibits any person from possessing any marine mammal or marine mammal product, from transporting, purchasing, selling, exporting, or from offering to purchase, sell, or export any marine mammal or marine mammal product taken in violation of the Act. 16 U.S.C. <sect> 1372(a)(3) & (4) (1994).

n15 16 U.S.C. <sect> 1362(13) (1994).

n16 16 U.S.C. <sect> 1371(a)(2) (1994). The 1981 Amendment to the MMPA provides that in the case of purse seine fishing for yellowfin tuna the goal of approaching a zero mortality and serious injury rate will be satisfied by "a continuation of the application of the best marine mammal safety techniques and equipment that are economically and technologically practicable." Id.

n17 United States v. Hayashi, 22 F.3d 859, 861. The record does not specify whether Hayashi was engaged in commercial or recreational fishing at the time of this incident. Id. at 859-67.

n18 Id. "Ahi" means tuna in the Hawaiian language. Webster's Third New International Dictionary 44 (1976).

n19 Hayashi, 22 F.3d at 861. Waianae is off the coast of the Hawaiian island of Oahu. The New York Times Atlas Of The World 135 (3d ed. 1993).

n20 Hayashi, 22 F.3d at 861. The porpoises were approximately twenty five yards from the boat. Appellee's Answer Brief at 2, U.S. v. Hayashi, 22 F.3d 859 (9th Cir. 1994) (No. 91-10044).

N21 Hayashi, 22 F.3d at 861.

n22 Id.

n23 Id. Under the Marine Mammal Protection Act, the Department of Commerce is responsible for whales, dolphins, porpoises, sea lions and seals. Within the Department of Commerce, the National Oceanic and Atmospheric Administration (hereinafter "NOAA") is responsible for the management and protection of marine mammals. NOAA's subordinate agency, the National Marine Fisheries Service, is assigned the responsibilities of research and management of whales, porpoises, dolphin and seals. H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4146.

n24 Appellant's Opening Brief at 4, United States v. Hayashi, 22 F.3d 859 (9th Cir. 1994) (No. 92-10044).

n25 Hayashi, 22 F.3d at 861.

n26 Id. Hayashi was charged under <sect> 1371(a)(2)(A) of the MMPA. Id. This section of the statute provides that "it is unlawful . . . for any person or vessel or other conveyance to take any marine mammal in waters or on lands under the jurisdiction of the United States." 16 U.S.C. <sect> 1372(a)(2)(A) (1994).

n27 Hayashi, 22 F.3d at 861.

n28 Id. Specifically, Hayashi argued that the term "harass," as specified in the MMPA and as applied to porpoises, was unconstitutionally vague, thereby rendering the statute void. Appellant's Opening Brief at 5, United States v. Hayashi, 22 F.3d 859 (9th Cir. 1994) (No. 92-10044).

n29 Hayashi, 22 F.3d at 861. The facts submitted to the magistrate judge included the Hayashis' written statements and an NMFS agent's report and notes on the interviews of the father and son. Id.

n30 Appellant's Opening Brief at 1, United States v. Hayashi, 22 F.3d 859 (9th Cir. 1994) (No. 92-10044). A person who violates the Marine Mammal Protection Act may be assessed a civil or criminal penalty. 16 U.S.C. <sect> 1375 (1994). If a person violates any provision of the Act, or permit or regulation issued thereunder, the Secretary may assess a civil penalty of up to $ 10,000 for each violation. 16 U.S.C. <sect> 1375(a)(1) (1994). Further, the Secretary may assess a criminal penalty to a person who knowingly violates the MMPA. 16 U.S.C. <sect> 1375(b) (1994). Upon conviction, the criminal violator of the Act may be fined up to $ 20,000 for each violation, or imprisoned for up to one year, or both. Id. Each unlawful taking is a considered a separate offense. 16 U.S.C. <sect> 1375(a)(1) (1994).

n31 Hayashi, 22 F.3d at 861.

n32 Id. The district court did not hear oral argument. Id.

n33 Id.

n34 Id. at 865.

n35 Hayashi, 22 F.3d at 861 n.1. Although the Ninth Circuit did not reach Hayashi's vagueness challenge, it noted that the term "harass," as set forth in the MMPA, raises an issue of adequate notice to potential violators. Id. at 865

n.14.

n36 United States v. Hayashi, 22 F.3d 859 (9th Cir. 1994).

n37 Id. at 861.

n38 Id. at 862.

n39 Id.

n40 Id. The district court had affirmed Hayashi's conviction under the erroneous belief that negligent conduct was sufficient to support criminal prosecution of Hayashi under the MMPA. While the MMPA authorizes both civil and criminal penalties for violation of its provisions, criminal penalties only apply to persons who "knowingly" violate a provision of the act. In the proceedings below, the parties referred the court to 50 C.F.R. <sect> 17.3, which includes both negligent and intentional acts in its definition of "harass." In so doing, they failed to inform the court that the MMPA requires the defendant to "knowingly" commit the prohibited conduct before criminal liability may attach. The district court's affirmance of Hayashi's conviction rested at least in part upon its misunderstanding of the requisite mens rea.

While the district court found that "firing the rifle in waters containing porpoises was a negligent act that created a likelihood of injury to the porpoises" they went on to suggest that there was also evidence of Hayashi's intentional attempt to deter the porpoises from his catch. Hayashi, 22 F.3d at 862.

n41 Id. at 865.

n42 Id. at 861.

n43 Id. at 861.

n44 16 U.S.C. <sect> 1371(a)(2)(A) (1994). See supra note 26.

n45 16 U.S.C. <sect> 1362(13) (1994).

n46 Hayashi, 22 F.3d at 861. The government conceded that no other terms within the definition of "take" had possible application to Hayashi's act of firing shots within the vicinity of porpoises while they were eating fish and bait from his fishing lines. Id.

n47 Id.

n48 Id. at 863-64 (citing 50 C.F.R. <sect> 216.3 (1994)). 50 C.F.R. <sect> 216.3 defines "take" as to harass, hunt, capture, collect, kill, or attempt to harass, hunt, capture, collect or kill any marine mammal. This includes, without limitation, any of the following: The collection of dead animals, or parts thereof; the restraint or detention of a marine mammal, no matter how temporary; tagging a marine mammal; the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal; and feeding or attempting to feed a marine mammal in the wild.

50 C.F.R. <sect> 216.3 (1996).

n49 Hayashi, 22 F.3d at 864.

n50 Id.

n51 Id. 16 U.S.C. <sect> 1362(13) (1994).

n52 The doctrine of noscitur a sociis, a familiar principle of statutory construction, states that if a meaning of a statute is unclear, the meaning of doubtful words may be determined by reference to their relationship with other associated words and phrases. Norman Singer, Sutherland Statutory Construction <sect> 47.16, at 183 (5th ed. 1992).

n53 Hayashi, 22 F.3d at 864.

n54 Id.

n55 Id.

n56 Id. The court noted, "section 17.3, issued under the Endangered Species Act, is not the controlling regulatory definition and is an improper starting point for any MMPA prosecution; it is nonetheless analogous authority that is of considerable assistance in interpreting 50 C.F.R. <sect> 216.3." Id.

Furthermore, the NMFS has itself referred to <sect> 17.3 in interpreting the meaning of "harass" under the MMPA. Id. at 864 n.13.

n57 Hayashi, 22 F.3d at 864. The text of 50 C.F.R. <sect> 17.3 defining harm states Harm in the definition of "take" . . . means an act which actually kills or injuries wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. 50 C.F.R. <sect> 17.3 (1996).

n58 Hayashi, 22 F.3d at 864.

n59 Id.

n60 Id. at 865.

n61 Id.

n62 Id. at 865. The court suggested that the lower courts had given the term "harass" too broad a definition, and "in the absence of their appropriately restrictive construction of the MMPA and its regulations, 'harass' would raise a serious issue of adequate notice to potential violators." Id. at 865 n.14.

n63 Id. at 865.

n64 Id.

n65 Id.

n66 Id.

n67 Hayashi, 22 F.3d at 865. The majority noted, however, that any diversion from eating off Hayashi's lines was not required to constitute a "taking" under the MMPA. Id.

n68 Id.

n69 Id. The court emphasized in a footnote that the reasonableness of deterrent steps depends upon their impact on the mammal. Id. at 865 n.15.

n70 Hayashi, 22 F.3d at 865.

n71 Id. (referring to 56 Fed. Reg. 11693 (1991) which became effective April 19, 1991).

n72 Id. at 866 (citing 56 Fed. Reg. 11693, 11695 (1991)).

n73 Hayashi, 22 F.3d at 866.

n74 Id.

n75 Id. However, the dissent argues that the majority presented a false "fisherman's dilemma." Judge Browning asserts 50 C.F.R. <sect> 216.3 only regulates "intentional" feeding of marine mammals, and exempts unintentional, incidental feeding. Since the fisherman would be fishing for tuna for human consumption, not to feed to the porpoises, Browning argues that this provision would not apply to the conduct because the feeding of the porpoises would be unintentional. Id. at 869 n.6.

n76 Id. at 866.

n77 Hayashi, 22 F.3d at 871.

n78 Id. at 867 (citing to 1972 U.S.C.C.A.N. at 4148).

n79 Id.

n80 Id. The adopted legislation was constructed with conservation in mind.

The Committee on Merchant Marine and Fisheries indicated that the "legislation should be adopted to require that we act conservatively. . . . No steps should be taken regarding [endangered marine mammals] that might prove to be adverse or even irreversible in their effects until more is known." H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4148.

n81 Hayashi, 22 F.3d at 867.

n82 Id. at 866.

n83 Id. at 867.

n84 Id.

n85 Id. See 16 U.S.C. <sect> 1371(a) (1984).

n86 Hayashi, 22 F.3d at 866-67. The Secretary may prohibit conduct which is harmful to the marine mammals as well as develop and encourage means of ensuring their survival. The areas that will be affected by the majority's narrow construction of the term "taking" include the Secretary's research into methods of fishing that minimize the incidental "taking" of marine mammals (16 U.S.C. <sect><sect> 1380-1381), the reported incidental "takings" by vessels that have received exemptions to provide information on the effect of fishing techniques on marine mammals (16 U.S.C. <sect> 1383a(c),(g)), and the Marine Mammal Commission's continuing review of humane means of "taking" marine mammals (16 U.S.C. <sect> 1402(a)(2)). Id. "Secretary" refers to the Secretary of Interior and the Secretary of Commerce. Id. at 866 n.1.

n87 Id.

n88 Id. at 867.

n89 Hayashi, 22 F.3d at 867.

n90 Id. at 867-69.

n91 Id. at 867.

n92 Id.

n93 Id.

n94 Hayashi, 22 F.3d at 868. Judge Browning's conclusion that "harass" must significantly add to the definition of take is premised at least in part upon the fact that Congress had rejected a proposal to define "take" in terms which differed only in the absence of "harass" and inclusion of "wound." Id.

n95 Id.

n96 Id. at 869. Judge Browning was concerned not only with the majority's narrowing of the definition of "taking" here, but also with the "elusive concept" of "normal marine mammal behavior," which is not mentioned in the Act or its legislative history and will require courts and regulators to develop a system of rules from which to determine exactly what behavior the majority is referring to. In addition, Judge Browning challenged the majority's suggestion that a porpoise's feeding off of fishing lines constituted "unnatural" or "abnormal" behavior. He argued that by excluding such behavior from the protections of the MMPA the majority denied marine mammals protection from harm arising out of human fishing activity, a primary purpose of the Act. Id. at 868-69.

n97 Hayashi, 22 F.3d at 868.

n98 Id. at 869.

n99 Id. at 868.

n100 Id.

n101 Id. at 870. Judge Browning noted that some loss of marine mammal life was inevitable in commercial tuna fishing operations. To protect this industry, the Congressional exemption provides a "restraining system of permits and regulations administered by the Secretary" which limits injury to the animals without destroying commercial fishing enterprises. Hayashi, 22 F.3d at 870.

n102 Id.

n103 Id.

n104 United States v. Hayashi, 22 F.3d 859, 866 (9th Cir. 1994) (Browning, J., dissenting).

n105 See infra parts V.A., V.B., and V.C.

n106 Singer, supra note 52, <sect> 46.03, at 94. "The courts owe fidelity to the will of the legislature. What the legislature says in the text of the statute is considered the best evidence of the legislative intent or will.  Therefore, the courts are bound to give effect to the expressed intent of the legislature." Id.

n107 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56 (1987) (citing Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). See Washington Pub. Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883, 885-86 (9th Cir. 1993).

n108 16 U.S.C. <sect> 1362(13) (1994).

n109 Babbitt v. Sweet Home Chapter of Communities For A Great Oregon, 115 S. Ct. 2407, 2412 (1995).

n110 Webster's New Collegiate Dictionary 517 (1980).

n111 See infra text accompanying notes 112-114.

n112 See infra notes 125-130 and accompanying text.

n113 See supra note 15 and accompanying text.

n114 See supra, text accompanying notes 111-113.

n115 See infra notes 116-121 and accompanying text. The Supreme Court often uses legislative history to assist in statutory interpretation. See Babbitt v. Sweet Home Chapter of Communities For a Great Oregon, 115 S. Ct. 2407 (1995); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987).

n116 16 U.S.C. <sect> 1362(13) (1994); H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4155.

n117 Hayashi, 22 F.3d at 867 (Browning, J., dissenting).

n118 Hayashi, 22 F.3d at 867 (Browning, J., dissenting) (quoting H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4150) (emphasis added). Further, arguing that the definition of "take" was too broad, the Commerce Department proposed an alternative definition that purposefully omitted the term "harass." Congress however, rejected this proposal. Id. at 868.

n119 Id.

n120 H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4155; H.R. Rep. No. 970, 100th Cong., 2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 6154, 6164.

n121 H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4148.

n122 See, e.g., 50 C.F.R. <sect> 216 (1996).

n123 See infra notes 124-34 and accompanying text.

n124 50 C.F.R. <sect> 216.3 (1995). See supra note 48.

n125 Levin, supra note 2, at 557.

n126 Id. The cerebral cortex is responsible for recording the changes in the external and internal environments, evaluating the environment on the basis of needs and experiences, and initiating motor activity to respond to the internal and external environments, as well as thinking, memory, and language. Id.

n127 Id. A high degree of convolution of the cerebral cortex increases the surface area of the cortex. Id.

n128 Levin, supra note 2, at 557.

n129 Id. at 558.

n130 As the cerebral functions include thinking, as well as recording changes in, evaluating, and adjusting motor activity to respond to the internal and external environments, see Levin, supra note 2, we may infer that highly intelligent cetaceans are disturbed by acts of violence directed toward them, such as Hayashi's conduct of shooting a rifle in their direction.

n131 Hayashi, 22 F.3d at 868 (Browning, J., dissenting).

n132 50 C.F.R. <sect> 216.3 (1996).

n133 Hayashi, 22 F.2d at 866.

n134 See 50 C.F.R. <sect> 216.3 (1996).

n135 Hayashi, 22 F.3d at 868 (Browning, J., dissenting).

n136 Id.

n137 16 U.S.C. <sect> 1371(a)(3)(A) (1994). Section 1371(a)(3)(A) states in relevant part: "The Secretary, on the basis of the best scientific evidence available and in consultation with the Marine Mammal Commission, is authorized and directed . . . to determine when . . . to waive the requirements of this section so as to allow taking . . . and . . . issue permits." Id.

n138 Hayashi, 22 F.3d at 868 (citing 58 Fed. Reg. 41458 (1993)).

n139 The doctrine of noscitur a sociis states that if a meaning of a statute is unclear, "the meaning of doubtful words may be determined by reference to their relationship with other associated words and phrases." Singer, supra note 52, <sect> 47.16, at 183.

n140 Hayashi, 22 F.3d at 868 (Browning, J., dissenting).

n141 Singer, supra note 52, <sect> 47.16, at 183.

n142 See supra section V.B.

n143 Hayashi, 22 F.3d at 868 (Browning, J., dissenting) (quoting H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4150); H.R. Rep. No. 707, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4148.

n144 Singer, supra, <sect> 47.16, at 183.

n145 See supra note 110 and accompanying text.

n146 Rules of construction are employed to "'illuminate the intent of the drafters; when the rule conflicts with other, clearer indications of intent, its results should be ignored.'" Hayashi, 22 F.3d at 868 n.3 (Browning, J., dissenting) (quoting Leslie Salt Co. v. United States, 896 F.2d 354, 359 (9th Cir. 1990)).

n147 Babbit v. Sweet Home Chapter of Communities for Great Oregon, 115 S. Ct. 2407 (1995).

n148 115 S.Ct. 2407 (1995).

n149 Kenneth J. Plante et al., Babbit v. Sweet Home Chapter of Communities for a Great Oregon: Preserving the "Critical Link" Between Habitat Modification and the "Taking" of an Endangered Species, 20 Nova L. Rev. 747, 776 (1996).

The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct." 16 U.S.C. <sect> 1532(19) (1994).

n150 Babbit, 115 S. Ct. at 2412.

n151 Id. at 2415.

n152 Id.

n153 Id.

n154 Id.

n155 Id.

n156 Hayashi, 22 F.3d at 868 (Browning, J., dissenting).

n157 Hayashi, 22 F.3d at 864. The majority declares that because "harass" is a "very general term" it is necessary to look to its context to ascertain its meaning. Id. The majority then states that since "'words grouped in a list should be given related meaning,' we look to the other statutory and regulatory examples of 'taking'." Id., (quoting Third Nat'l Bank v. Impac Ltd., 432 U.S. 312, 322 (1977)). In deciding that "hunt," "capture," and "kill" are words that have a certain level of intrusiveness on marine mammals, "harassment must entail a similar level of direct intrusion." Id.

n158 See supra notes 115-21 and accompanying text for a discussion of the legislative intent in including the term "harass" in the MMPA.

n159 Hayashi, 22 F.3d at 868 n.3 (Browning, J., dissenting).

n160 The Supreme Court has stated that when Congress acts to amend a statute, it presumes Congress "intends its amendment to have substantial effect." Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2414 (1995) (quoting Stone v. INS, 115 S. Ct. 1537, 1545 (1995)).

n161 16 U.S.C. <sect> 1371 (a)(4) (1994).

n162 16 U.S.C. <sect> 1371 (a)(4)(B) (1994); Taking and Importing of Marine Mammals; Deterrence Regulations and Guidelines, 60 Fed. Reg. 22345 (1995).

n163 Taking and Importing of Marine Mammals; Deterrence Regulations and Guidelines, 60 Fed. Reg. 22345, 22346 (1995).

n164 Id. Section 101(a)(4) requires that NMFS consults with appropriate experts on the implementation of the deterrence provisions. NMFS has compiled a list of individuals believed to have experience and knowledge of marine mammals and the use of deterrence devices. These individuals have been sent a copy of this proposed rule and asked by NMFS to submit commits on this proposed rule.

Id.

n165 Id. In discussing the prohibition of firearms for deterrent purposes, the NMFS referred to incidents where fishermen used firearms against marine mammals. Id. For example, the Alaska Prince William Sound fishery used firearms to deter killer whales from damaging its catch and gear. Taking of Marine Mammals Incidental to Commercial Fisheries, 59 Fed. Reg. 45263, 45264 (1994).

Three killer whales from the relevant pod were lost during 1985, three in 1986,one in 1987 and one in 1988. Id. Furthermore, several whales in the pod showed evidence of bullet wounds. Id. The deaths of the animals were believed to be the result of intentional takes by participants in the fishery. Id. 

Additionally, in assessing the frequency of "takes" of marine mammals by fisheries, the Department of Commerce reported that, based on congressional guidance, the chasing away of killer whales by fishermen to deter the mammals from catch and gear constitutes harassment under the MMPA. Taking of Marine Mammals Incidental to Fishing Operations, 59 Fed. Reg. 43818, 43819 (1994).

n166 See supra part V.

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