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U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Office of the Administrative Law Judge

In the Matter of: Richard O'Barry
United States of America
1999 NOAA LEXIS 1


Case Details
Printable Version
Summary:   In 1999, civil penalties in the amount of $59,500 were assessed for the release of two dolphins from captivity.  The dolphins were not prepared to survive in the wild and sustained life-threatening injuries as a result of their release.  An administrative law judge found that the release of two dolphins without providing them with the necessary skills for survival resulted in harassment and injury to them, and therefore, constituted a violation of the MMPA.

Judge Peter A. Fitzpatrick, Administrative Law Judge delivered the opinion of the court.


Opinion of the Court:

I. Summary of the Decision

This case reflects the sad consequences of the obsessive actions of Respondents Richard O'Barry and Lloyd A. Good, III. The Respondents, in pursuit of the lofty goal of establishing a Sanctuary for captive dolphins (and where possible releasing them into the wild), intentionally disregarded the best interests of the dolphins, the mandates of Congress, the regulations of the National Marine Fisheries Service ("NMFS"), the guidance of the Humane Society of the United States ("Humane Society"), and the advice of other persons and organizations caring for dolphins. The Respondents and their corporate entities, Sugarloaf Dolphin Sanctuary, Inc. ("Sanctuary") and The Dolphin Project, Inc., violated the Marine Mammal Protection Act ("MMPA") by illegally releasing two dolphins known as LUTHER and BUCK into the wild without providing the dolphins with the necessary skills for survival. This resulted in harassment and injury to LUTHER and BUCK. This has also seriously set back the future release of surplus Navy dolphin into the wild; and has added little, if any, usable scientific data on the release of marine mammals. Moreover, the Sugarloaf Dolphin Sanctuary, which was created with such promise, is now devoid of dolphins and other marine mammals and will likely remain that way. These men and the entities they control must bear full responsibility for their acts and they will be assessed nearly the full measure of the penalties sought by the National Oceanic and Atmospheric Administration ("NOAA"). Only one count (Count VII) is Dismissed. The others are Proved and the heavy penalties proposed by the Government are fully supported by this record.

The first two counts charge Good and O'Barry and their corporate entities with harassment of LUTHER and BUCK. Those dolphins, who spent many years in captivity and were trained to perform at human commands by the Navy, were hurriedly dumped into unfamiliar water off the coast of Key West, Florida without the survival skills that the Respondents acknowledge were necessary for a successful release. This was done in defiance of repeated warnings from NMFS and in direct contravention of the Respondents' own protocols and policies. Not surprisingly, both dolphins were injured and BUCK was in serious condition when re-captured. Counts III and IV involve the transport and release of the two dolphins without the required permit from NMFS. Good and O'Barry were both fully aware that they needed to obtain a scientific research permit from NMFS before releasing the dolphins into the wild. Not only was the scientific research permit a condition of the Sanctuary's public display permit, the Respondents also received repeated warnings from NMFS that failure to obtain a scientific release permit would expose them to liability in the event that a "take" occurs in violation of the MMPA. Nevertheless, the Respondents violated the conditions of their public display permit and intentionally disregarded the warnings from NMFS. As for Counts V and VI, Respondent Sugarloaf Dolphin Sanctuary is solely responsible for failing to notify NMFS at least 15 days in advance of intent to transport LUTHER and BUCK. Good and O'Barry surreptitiously carried out the release to evade an impending Government seizure. Clearly, both men knew that compliance with the law would have alerted the Agency and stopped the release. with regard to Count VII, I find that the Sanctuary was not afforded a sufficient opportunity, as a matter of fairness, to transfer JAKE to a Federally permitted facility, after its Exhibitor's License was suspended. The charge that the Sanctuary possessed the dolphin without an appropriate license is not Proved and is Dismissed since the seizure occurred merely seven days after the suspension.

II. Procedural History

The National Oceanic and Atmospheric Administration "NOAA" or the "Agency" initiated this civil penalty proceeding under the Marine Mammal Protection Act ("MMPA"), codified at 16 U.S.C. §§ 1361-1421h, and NOAA's procedural regulations located at 15 C.F.R. Part 904. On September 30, 1997, a Notice of Violation and Assessment (NOVA) was issued against Respondents Richard O'Barry, Lloyd A. Good, III, the Sugarloaf Dolphin Sanctuary, Inc. ("Sanctuary"), and The Dolphin Project, Inc. alleging seven violations of the MMPA.

Counts I and II allege that all four Respondents did "take" by "harassment" the dolphins respectively known as LUTHER and BUCK in waters under the jurisdiction of the United States in violation of 16 U.S.C. § 1372 (a)(2)(A). Counts III and IV state that the four Respondents transported the dolphins LUTHER and BUCK for a purpose other than public display, scientific research, or enhancing the survival of a species or stock, in violation of 16 U.S.C. § 1372(a)(4)(B). Counts V and VI allege that Respondents Sugarloaf Dolphin Sanctuary and The Dolphin Project ("Corporate Respondents") transported LUTHER and BUCK without properly notifying the Secretary of Commerce (National Marine Fisheries Service (NMFS)) of the transport at least 15 days in advance in violation of 16 U.S.C. § 1374 (c)(2)(E). Count VII alleges that the Corporate Respondents possessed the dolphin known as JAKE without holding an Exhibitor's License issued by United States Department of Agriculture (Animal Protection and Plant Health Inspection Service (APHIS)) in violation of 16 U.S.C. § 1374(c). An administrative penalty totaling $ 60,000 was proposed by the Agency. In the initial NOVA, the assessed penalties for Counts I through VI were $ 10,000 each and no monetary penalty was assessed for Count VII. The penalties were assessed jointly and severally against the named Respondents. Thus, each named Respondent is fully responsible for the entire amount of the penalties under each count. Counts I through IV involve all four Respondents while Counts V through VII involve only the corporate entities, Sugarloaf Dolphin Sanctuary and The Dolphin Project. The NOVA also indicated that a request to have the penalty amount modified on the basis that the Respondent was unable to pay the amount assessed should be accompanied by supporting financial information. Finally, the NOVA indicated that the National Marine Fisheries Service ("NMFS") had seized the dolphin JAKE from the Sanctuary and that the Government intended to seek forfeiture of this dolphin under 16 U.S.C. § 1377(d)(4). That forfeiture, however, is not a matter to be decided in this case. On December 18, 1997, Respondents Lloyd A. Good, III and the Sanctuary requested a hearing. About one month later, on January 15, 1998, those same Respondents filed a Motion to Dismiss the case on the grounds that the Agency lacked subject matter jurisdiction. In the Motion to Dismiss, the Respondents argued that the 1994 Amendment to the Marine Mammal Protection Act divested NMFS of jurisdiction over "captive" dolphins including their care, maintenance, supervision, and transportation. Allegedly, that responsibility was transferred to the Department of Agriculture ("APHIS") under the Animal Welfare Act. Thus, in Respondents' view, the NOVA involved here is void.

On February 2, 1998, while the above described motion was pending, the office of the Chief Administrative Law Judge of the U.S. Coast Guard issued a Notice of Transfer and Request for Preliminary Positions on Issues and Procedures ("PPIP"). That action was taken pursuant to a Memorandum of Understanding between NOAA and the Coast Guard authorizing Coast Guard Administrative Law Judges to preside at such hearings. On February 9, 1998, the Agency's response to the Motion to Dismiss was submitted asserting that the 1994 Amendments did not abolish NMFS of authority over captive marine mammals. On March 10, 1998, the Chief Administrative Law Judge Ingolia denied the Respondent's Motion to Dismiss and directed the Respondents to submit Preliminary Positions on Issues and Procedures on or before April 10, 1998. This issue was raised again at the hearing and is discussed in detail in the Opinion section of this Initial Decision.

Nearly six months after the case began, on March 19, 1998, the Agency filed a motion to amend the Notice of Violation and Assessment. Essentially, it sought to impose a penalty of $ 500.00 on Count VII where none had been sought earlier. Additionally, the amended NOVA reduced the penalties assessed under Counts V and VI by $ 250.00 each. In sum, the overall penalty sought in the case remained the same ($ 60,000.00). The Chief Judge granted the Agency's motion to amend on May 7, 1998. On March 4, 1998, the Agency's PPIP was filed. The Sanctuary and Mr. Good filed its PPIP on April 8, 1998. No PPIP was ever received from The Dolphin Project or Mr. O'Barry. A month later by Order dated May 19, 1998, the case was assigned to Chief Judge Joseph Ingolia and a hearing was tentatively set for September 16, 1998, at Key West, Florida. Subsequently, the Agency filed a motion on July 8, 1998, seeking to compel Mr. O'Barry and The Dolphin Project to produce Preliminary Positions on Issues and Procedures. That Motion was Granted by Order dated July 23, 1998. Those Respondents were given until August 10, 1998, to file submissions. Again, no PPIPs were submitted. On August 12, 1998, Mr. Richard O'Barry filed a motion seeking a continuance on the grounds that he had been out of the country for the past six months and would need more time to prepare. That motion was granted and the parties were directed to submit mutually acceptable dates for the hearing. Twenty (20) days later, the Agency responded that the parties were unable to agree. Subsequently, the case was assigned to this Judge and an Order was issued setting the hearing date for February 8, 1999. See Orders dated September 4 and 30, and October 5, 1998.

On December 17, 1998, the Agency filed the first Amended PPIP. On January 14, 1999, the Agency requested permission to have one of its witnesses, Dr. Gregory Bossart, testify by telephone because he was physically unable to attend the hearing in Key West, Florida. On December 28, 1998, Charles M. Milligan, Esq., counsel for Good and the Sanctuary, withdrew from the case and Edward M. Horan, Esq., entered an appearance. He too, later withdrew. The hearing convened on February 8, 1999 as scheduled. The hearing was conducted over a period of four days and ended on February 11, 1999. Joel La Bissonniere and Robert J. Hogan both appeared as counsel for the Agency, and Messrs. O'Barry and Good were also present at the hearing. Both Good and O'Barry indicated they would proceed without counsel. A list of witnesses and a description of the exhibits are set out in Attachment One to this Initial Decision. After the hearing concluded the Respondents were afforded an opportunity to file pleadings in accordance with NOAA regulations. Mr. Good submitted a lengthy "letter" on February 26, 1999, setting forth his analysis of the testimony in the case. Additionally, a number of documents were submitted. Some are in the record at the hearing and others are not. Now, they have been marked for identification. On March 22, 1999, Mr. O'Barry also submitted a letter with attachments. All submissions of both Respondents received after the hearing have been reproduced and served on all parties. The Agency's Post Hearing Brief and Proposed Findings of Fact and Conclusions of Law were submitted on April 21, 1999. The Agency's Post Hearing Reply Brief was submitted May 7, 1999. I have now reviewed all the testimony, exhibits, and pleadings, and the case is ripe for decision. III. The Statutes and Regulations Involved In 16 U.S.C. § 1361(1) "Congress finds that certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities."

16 U.S.C. § 1362(6) states that "the term 'marine mammal' means any mammal which (A) is morphologically adapted to the marine environment (including sea otters and members of the orders Sirenia, Pinnipedia and Cetacea)." 16 U.S.C. § 1362(8) states that "the term 'moratorium' means a complete cessation of the taking of marine mammals and a complete ban on the importation into the United States of marine mammals and marine mammal products, except as provided in this chapter.

16 U.S.C. § 1362 (12)(A)(i) states that the term "Secretary means the Secretary of the department in which the National Oceanic and Atmospheric Administration is operating, as to all responsibility, authority, funding, and duties under this chapter with respect to the members of the order Cetacea and members, other than walruses, of the order Pinnipedia." 16 U.S.C. § 1362 (13) states that "the term 'take' means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." 16 U.S.C. § 1362 (18)(A) states that the term 'harassment' means any act of pursuit, torment, or annoyance which-

(i) has the potential to injure a marine mammal or marine mammal stock in the wild; or

(ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering. The Marine Mammal Protection Act provides as follows at 16 U.S.C. § 1371(a)(1):

There shall be a moratorium on the taking and importation of marine mammals and marine mammal products, commencing on the effective date of this chapter, during which time no permit may be issued for the taking of any marine mammal and no marine mammal or marine mammal product may be imported into the United States except in the following case:

(1) Consistent with the provisions of section 1374 of this title, permits may be issued by the Secretary for taking and importation for purposes of scientific research, public display, photography for educational or commercial purposes, or enhancing the survival or recovery of a species or stock, or for importation of polar bear parts (other than internal organs) taken in sport hunts in Canada. Such permits, except permits issued under section 1374(c)(5) of this title, may be issued if the taking or importation to be made is first reviewed by the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals established under subchapter III of this chapter. The Commission and Committee shall recommend any proposed taking or importation, other than importation under section 1374(c)(5) of this title, which is consistent with the purposes and policies of section 1361 of the title. If the Secretary issues such a permit for the importation, the Secretary shall issue to the issuer concerned a certificate to that effect in such form as the Secretary of the Treasury prescribes, and such importation may be made upon presentation of the certificate to the customs officer concerned.

The Respondents in this case are charged with committing a "take" by harassment in violation of 16 U.S.C. § 1372(a)(2)(A), which states in relevant part:

Except as provided in sections 1371, 1373, 1374, 1379, 1381, 1383, and 1383a,and 1387 of this title and subchapter V of this chapter, it is unlawful- * * *(2) except as expressly provided for by an international treaty, convention, or agreement to which the United States is a party and which was entered into before the effective date of this subchapter or by any statute implementing any such treaty, convention, or agreement -(A) 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;

The Respondents are also charged with violating 16 U.S.C. § 1372(a)(4)(B), which provides that it is unlawful-

(4) for any person to transport, purchase, sell, export, or offer to purchase, sell or export any marine mammal or marine mammal product - * * *

(B) for any purpose other than public display, scientific research, or enhancing the survival of a species or stock as provided for under subsection 1374(c) of this title.

The Corporate Respondents are charged with violating 16 U.S.C. § 1374(c), which provides in pertinent part: (1) Any permit issued by the Secretary which authorizes the taking or importation of a marine mammal for purposes of scientific research, public display, or enhancing the survival or recovery of a species or stock shall specify, in addition to the conditions required by subsection (b) of this section, the methods of capture, supervision, care, and transportation which must be observed pursuant to such taking or importation. Any person authorized to take or import a marine mammal for purposes of scientific research, public display, or enhancing the survival or recovery of a species or stock shall furnish to the Secretary a report on all activities carried out by him pursuant to that authority.

(2) (A) A permit may be issued to take or import a marine mammal for the purpose of public display only to a person which the Secretary determines-

(i) offers a program for education or conservation purposes that is based on professional recognized standards of the public display community;

(ii) is registered or holds a license issued under section 2131 et seq. of Title 7; and

(iii) maintains facilities for the public display of marine mammals that are open to the public on a regularly scheduled basis and that access to such facilities is not limited or restricted other than by charging of an admission fee.

(B) A permit under this paragraph shall grant to the person to which it is issued the right, without obtaining any additional permit or authorization under this chapter, to-

(i) take, import, purchase, offer to purchase, possess, or transport the marine mammal that is the subject of the permit; and

(ii) sell, export, or otherwise transfer possession of the marine mammal, or offer to sell, export, or transfer possession of the marine mammal-

(I) for the purpose of public display, to a person that meets the requirements of clauses (i), (ii), and (iii) of subparagraph (A);

(II) for the purpose of scientific research, to a person that meets the requirements of paragraph (3); or

(III) for the purpose of enhancing the survival or recovery of a speces or stock, to a person that meets the requirements of paragraph (4).

The Corporate Respondents are also charged with violating 16 U.S.C.1374(c)(2)(E), which provides that:

No marine mammal held pursuant to a permit issued under subparagraph (A), or by a person exercising rights under subparagraph (C), may be sold, purchased, exported, or transported unless the Secretary is notified of such action no later than 15 days before such action, and such action is for purposes of public display, scientific research, or enhancing the survival or recovery of a species or stock. The Secretary may only require the notification to include the information required for the inventory established under paragraph (10).

16 U.S.C. § 1375(a)(1) provides that:

Any person who violates any provisions of this subchapter or of any permit or regulation issued thereunder, except as provided in section 1387 of this title, may be assessed a civil penalty by the Secretary of not more than $ 10,000 for each such violation. No penalty shall be assessed unless such person is given notice and opportunity for a hearing with respect to such violation. Each unlawful taking or importation shall be a separate offense. Any such civil penalty may be remitted or mitigated by the Secretary for good cause shown. Upon any failure to pay a penalty assessed under this subsection, the Secretary may request the Attorney General to institute a civil action in a district court of the United States for any district in which such person is found, resides, or transacts business to collect the penalty and such court shall have jurisdiction to hear and decide any such action.

IV. Findings of Fact

A. Background

1. For over twenty-five years, the United States Navy ("Navy") has used dolphins in various operational and research programs as part of its "Advanced Marine Biological System" Project. (Agency Exhibit 6). In November 1991, the United States Congress decided to downsize the project and directed the Navy to develop training procedures that are designed to rehabilitate and reintroduce surplus captive dolphins that are no longer required for the project into their natural habitat. (Agency Exhibit 4). Pursuant to this directive, the Navy undertook to develop such procedures. The Sugarloaf Dolphin Sanctuary was to be a pioneer in developing protocols to return captive dolphins into the wild.

2. On November 30, 1994, three dolphins from the Space and Naval Warfare Marine Mammal facility in San Diego, California were transferred to the Sugarloaf Dolphin Sanctuary (Tr. 294). Those dolphins were named JAKE, LUTHER, and BUCK (Navy dolphins).

3. This transfer was made pursuant to a Memorandum of Agreement signed between the Navy, Lloyd A. Good, III on behalf of the Sanctuary, and The Humane Society of the United States. (Agency Exhibit 33; Tr. 296). In a separate document the Sanctuary agreed, among other things, "That all necessary legal release permits will be obtained from the National Marine Fisheries Service before any release occurs and every reasonable effort will be made to acquire these permits." (Agency Exhibit 34; Tr. 300-302).

4. The Humane Society of the United States was instrumental in assisting the parties in arriving at the Agreement and effectuating the transfer of the dolphins. (Tr. 296-300). The Navy had been under public and congressional pressure to release surplus dolphins that were no longer necessary for its operations. The dolphins were confined at the Navy's facility in San Diego, California. The Humane Society agreed to provide financial support to the Sanctuary and to assist it in acquiring the necessary licenses and permits. ( Agency Exhibit 33; Tr. 289). The Society understood that any release would be accomplished legitimately, legally and with sound science. (Tr. 290). Indeed, the Sanctuary itself in its early promotional literature announced that it was interested in proving scientifically that release into the wild was a viable and humane alternative to captivity and that this program would establish protocols by which the re-adaptation (release) process could be accomplished. (Agency Exhibit 7, 37).

5. The Sanctuary is a Florida nonprofit corporation located on Sugarloaf Key, 17 miles east of Key West, Florida. (Agency Exhibit 1, 47; Tr. 430). It is located adjacent to the Sugarloaf Lodge, which is owned by the Respondent's father, Lloyd A. Good, II. His son, Lloyd A. Good, III is the principal operator of the Sanctuary. Id. The Good family has cared for and maintained a dolphin named SUGAR as a pet for the past twenty-five years, or since 1974. (Agency Exhibit 8).

6. The Sanctuary was founded to offer a home for unwanted captive dolphins. (Agency Exhibit 1). The stated purpose of the organization was to provide the necessary survival skills to such dolphins to prepare them for release. (Agency Exhibit 7, 21). "A release candidate must have a known capture site to which it can be returned, a clean medical bill of health, be eating live fish, have functional sonar, and be able to be tracked for an extended period of time to ascertain whether it is accepted into a wild pod." Where release was not feasible, the dolphins would be allowed to live out their lives in the company of other dolphins in the lagoon setting of the Sanctuary. The Sanctuary would serve as a retirement home, and the animals would not be required to entertain the public. (Agency Exhibit 7).

7. Prior to the arrival of the "Navy" dolphins, the Sanctuary agreed to receive a second group of dolphins from the Ocean Reef Club at Key Largo, Florida. In order to obtain possession of these animals, the Sanctuary applied for a public display permit from the National Marine Fisheries Service for the purpose of holding the dolphins in captivity for public display. That application however, indicated that the Sanctuary proposed to serve as a dolphin "halfway house" with an emphasis upon the release of dolphins into the wild. (Id.).

8. On March 25, 1994, NMFS issued Permit No. 896 authorizing the Sanctuary to acquire up to 12 Atlantic Bottlenose Dolphins for public display. The permit also contained the warning that "No marine mammal obtained under this permit may be released into the wild unless such a release has been authorized under a separate scientific research permit that has been issued for that purpose." (Agency Exhibit 9).

9. After the Sanctuary obtained the permit, three dolphins were received from the Ocean Reef Club in August 1994. The dolphins were MOLLY, BOGIE and BACALL. (Tr. 303). The three Navy dolphins (LUTHER, BUCK, and JAKE) arrived approximately three months later - at the end of November. (Tr. 294). Thus, there were a total of seven dolphins at the Sugarloaf Dolphin Sanctuary in December 1994.

10. At that point, the Sanctuary was involved in two separate programs that dealt with the release of captive dolphins into the wild. First, BOGIE, BACALL, and MOLLY became part of the "Welcome Home Project," which involved the potential return of the dolphins to their home range in the Indian River-Banana River Complex on the east-central coast of Florida near Melbourne. The dolphins were to be conditioned at the Sanctuary and then transferred to two other organizations, which would effectuate the ultimate release. The Dolphin Alliance ("Alliance"), a private corporation operated by Mr. Joseph V. Roberts, and The Dolphin Project, Mr. O'Barry's corporation, were responsible for releasing the dolphins into the wild. (Agency Exhibit 11). The Humane Society also served as an advisor to the Welcome Home Project and had a member on the Alliance's scientific steering staff. (Agency Exhibit 11; Tr. 305). The necessary Federal permits for the release was to be obtained by the Alliance and The Dolphin Project. The second program was the "Navy Dolphin Project," which involved the potential release of LUTHER, BUCK, and JAKE to their home range in the Mississippi Sound area in the Gulf of Mexico.

11. In a Letter of Agreement dated September 24, 1993, between the Sanctuary and the Dolphin Alliance, Mr. Good agreed that the Sanctuary would not transfer the dolphins to the so-called re-adaptation team (The Dolphin Alliance and The Dolphin Project) until all necessary legal release permits had been obtained from NMFS. (Agency Exhibit 11). Approximately two months after the arrival of the Ocean Reef dolphins at the Sanctuary, the Dolphin Alliance filed an application for a scientific research permit to release the dolphins. (Agency Exhibit 11; Tr. 305-306). That application was ultimately denied in February 1995 because it lacked sufficient data concerning how the dolphins would be prepared for release and later monitored. (Agency Exhibit 12; Tr. 312).

B. Activities at the Sanctuary

12. In late November 1994, when the Navy dolphins arrived at Sugarloaf Dolphin Sanctuary, there were three members on the Sanctuary's Board of Directors. They included Good, O'Barry, and Rick Trout. O'Barry and Trout disagreed immediately over policy matters and Trout left Sugarloaf Dolphin Sanctuary two days after the Navy dolphins arrived. (Tr. 340-343). His departure, however, did not end the conflicts at Sugarloaf. O'Barry and Good held widely differing views over how the dolphins should be prepared for release. Mr. O'Barry believed that the dolphins should be "de-trained" and that human contact with them should be severely limited so that they would not continue to be dependent upon humans for food. (Agency Exhibit 35). He believed that the proper preparation for release was not a scientific process but a healing art. The dolphins would progress slowly from receiving food from humans in the form of dead fish to foraging for live fish within the Sanctuary. No longer would they be subject to human commands or demands. (Id.). Mr. O'Barry believed that being one with the dolphins would allow him to sense and understand when the dolphins were ready for release. (Tr. 992-994). By contrast, Mr. Good believed that no amount of conditioning could overcome the dolphins long years of training in captivity. His opinion was that the release process was simple. You open the gate and then "leave them alone and see what they do." (Tr. 1017).

13. Approximately two months after the dolphins arrived at Sugarloaf Dolphin Sanctuary, Ms. Mary Lycan, a dolphin trainer at Dolphin Cove Research and Education facility at Key largo, was hired. (Tr. 489-491). She had previously worked at the Ocean Reef Club with BOGIE and BACALL. (Tr. 490). Ms. Lycan's responsibility was to draft protocols regarding the methods used to condition the dolphins for release. (Tr. 492). During her tenure, Ms. Lycan drafted some protocols but none were ever included in an application for a permit.

14. Meanwhile, the Board of Directors of the Sanctuary expanded to include three individuals who were well known in the marine mammal community. They were Robert Schoelkoff of the Marine Mammal Stranding Center, Bringantine, New Jersey, (Tr. 368), Rick Spill, (also known as Bill Wewer) of the Animal Welfare Institute, (Tr. 512-514; Mr. Good's letter of February 26, 1999, page 12.) and Mark Berman, the Earth Island Institute (Tr. 368). They were referred to as the "outside" Board Members. Thus, at the end of January 1995, there were a total of five members of the Board of Directors including Good and O'Barry.

15. After NMFS denied the Dolphin Alliance application for a scientific research permit in February 1995, the relationships within the Sanctuary and beyond began to decline. Good and O'Barry perceived the denial as an indication that NMFS did not intend to approve any release permit. They became increasingly secretive regarding operations at the Sanctuary and little information was passed to other members of the Board of Directors. Accordingly, the three outside Board members sent a veterinarian by the name of Dr. Sherrick to the facility to examine the dolphins. (Tr. 372-373). The Doctor was not allowed to examine the dolphins but was only able to observe them from the shore.

16. A Board meeting was called in June 1995, after the outside Board Members learned that BOGIE, BACALL, and MOLLY were permitted to swim in open water outside the Sanctuary earlier that month. (Tr. 375). During that same month, Good relieved Lycan of her duties as a result of disagreements over Good's practice of allowing the dolphins to swim in open water. (Tr. 509-510). The Board of Directors met in an emergency session and took several actions. They determined that the release of the dolphins into open water endangered the dolphins' welfare since they were not ready for release. They also criticized Good's management of the Sanctuary and characterized it as "poor to dismal." (Tr.375-377). In response, the Board took several important actions. First, it transferred ownership and custody of BOGIE and BACALL to the Dolphin Alliance operated by Mr. Roberts. Second, it transferred LUTHER, MOLLY and BUCK to the Marine Mammal Conservancy (an organization founded and operated by Rick Trout). Finally, the Board voted to terminate Mr. O'Barry from his position. (Id.). Neither Good nor O'Barry participated in this emergency meeting.

17. A second meeting of the Board was held in July 1995. During that meeting, the Board voted to remove Good and O'Barry from the Board. (Agency Exhibit 39). Good and O'Barry immediately filed a lawsuit against the Sanctuary Board. The lawsuit was subsequently settled and the parties agreed to the following conditions: (1) All outside Board Members agreed to resign and were indemnified against any liability; and (2) BOGIE and BACALL were transferred to the Dolphin Alliance for continued participation in the "Welcome Home Project."

The settlement agreement did not address the status of remaining dolphins, JAKE, BUCK, MOLLY and LUTHER. (Agency Exhibit 40; Tr. 195-196).

18. Thus, seven months after the arrival of the Navy dolphins at the Sanctuary, the Board of Directors now consisted of three members, Good, O'Barry and a new member, Kathleen Brooks. (Agency Exhibit 22). By the end of the summer of 1995, the officers of The Humane Society withdrew their support for the Sanctuary and no longer believed that the personnel there were interested in pursuing a scientific approach to release. (Tr. 318-323, 349).

19. At this point, NMFS officials became increasingly alarmed over the activities at the Sanctuary and sought assurances that the dolphins would not be released without a scientific research permit. On August 30, a majority of the Sanctuary Board, including Good, voted to seek such a permit. Mr. O'Barry agreed to "go along" with that decision. (Agency Exhibit 22). 20. During the fall and winter of 1995, nearly one-year after the Navy dolphins arrived at the Sanctuary, internal strife arose to new heights. Mr. O'Barry stopped living at Sugarloaf in October, and Mr. Good fired the entire animal care staff on December 7. (Agency Exhibit 27; Tr. 1052-1053).

21. On January 26, 1996, the Sanctuary board convened and transferred JAKE, LUTHER and BUCK to the Dolphin Project. (Agency Exhibit 23). That conveyance was never recognized by the NMFS since the Dolphin Project did not obtain a Federal permit authorizing it to possess dolphins or other marine mammals. At that meeting, the Board voted to seek a permit to transfer the Navy dolphins to a facility in the Mississippi Sound and to apply for a NMFS permit to release them there. (Id.). During this same period, the dolphins in the Welcome Home Project (BOGGIE and BACALL) were transferred to The Dolphin Alliance and actually moved to a facility on the Indian River near Melbourne, Florida. Shortly after their arrival, that enclosure was cut open at night and the dolphins escaped into the river. It is still unknown who committed that act. The dolphins have not been seen since that release.

22. After O'Barry and the animal husbandry staff at the Sanctuary departed, Good was in complete control. During the approximately four months period prior to their release on May 23, 1996, the dolphins frequently were seen swimming in the lagoon in front of the hotel. Often they were fed on schedule and the feedings consisted of dead fish. (Tr. 506-509-539-555; Agency Exhibit 43). They received the food with their head out of the water near the boat in the lagoon. (Tr. 540-546; Agency Exhibit 43). Sometimes hotel guests fed them other items such as crabs. (Tr. 540-542,581; Agency Exhibit 44). In order to see if the dolphins would leave the Sanctuary, Good either stopped feeding them or reduced their food supply. As a result, the dolphins were observed in the waters surrounding the lodge begging for food from fishermen. (Agency Exhibit 29). Also, they were seen swimming outside the Sanctuary in front of the lodge in open water with strangers. (Tr. 550-551; Agency Exhibit 41).

23. On April 25, 1996, O'Barry and Brooks wrote to NMFS stating that the dolphins were in jeopardy, were swimming outside the facility, and were at the mercy of the local fishermen. They asked NMFS to intervene. (Agency Exhibit 27). Also, O'Barry sent a letter to APHIS indicating there was a "real emergency" at the Sanctuary and that the dolphins were living in a nearby marina most of the time, dodging boats. (Agency Exhibit 28). He asked the Agency to get the dolphins out of harms way immediately. (Agency Exhibit 29). Based on these requests, and on letters from others who were concerned about the dolphins welfare and had seen the dolphins outside the Sanctuary, NMFS and APHIS decided that the dolphins should be seized for their own protection. (Tr. 225). Mr. O'Barry found out about that plan and returned in early May 1996 to Sugarloaf to warn Good of the impending seizure of the dolphins. (Tr. 974, 1084).

C. The Release and Re-capture

24. Two weeks later on May 23, 1996, when they believed a Government seizure was imminent, Good and O'Barry decided to release LUTHER and BUCK. (Tr. 1084-1085). With the assistance of Lincoln, O'Barry's son and an officer of The Dolphin Project, the dolphins were loaded onto a motor boat and driven to a point approximately six miles north of Key West in the Gulf of Mexico in an area near Mud Key. There they were dumped overboard. (Agency Exhibits 46-47; Tr. 431-432). A French film crew arranged by O'Barry was also present and filmed the entire release. (Agency Exhibit 45). Both dolphins had been freeze branded at the Sanctuary. LUTHER had a star and BUCK had a heart branded on their fins. (Agency Exhibit 65).

25. A short time after the boat left Sugarloaf Dolphin Sanctuary, NMFS was notified that the release was about to occur. The Coast Guard and the Florida Marine Patrol were alerted and a search began. The boat was not located and the search was called off once it was learned that the release occurred about 11:30 a.m. (Tr. 405-409). At that point, NMFS agents went to the Sugarloaf facility and interviewed Good, O'Barry, and members of the French film crew. In response to their questions, O'Barry stated that he had released the dolphins and that Good had nothing to do with it. (Tr. 410). The agents seized the film from the videographer. (Tr. 414). The next day a "friendly" dolphin was seen in the Key West area near the Blue Lagoon Hotel. (Tr. 597-598). The following day, LUTHER was observed near Garrison Bight near the Key West Yacht Club. (Tr. 598-599). He was begging for food from passing boats. (Tr. 600, 656). By that time, a number of organizations were looking for the dolphins, including the Marine Mammal Conservancy, the Dolphin Research Center, and the Southeast Marine Mammal Stranding Network. No NMFS personnel were involved in the search at this point (Tr. 656-659).

26. Three days after LUTHER was released, he was seen at Sunset Marina in Key West. That marina is located on a busy channel connecting the Straits of Florida and the Gulf of Mexico. (Tr. 436-437). The reports described LUTHER as thin with a series of lacerations on his right side. (Tr. 604-605, 662). A NMFS biologist who arrived on scene concluded that LUTHER was in distress and needed medical attention. (Tr. 663). At that point, it was decided that the Agency would undertake a re-capture effort. (Tr. 664).

27. Four days after the release, on Memorial Day, LUTHER was observed begging for food near another marina. (Agency Exhibit 54). A plastic garbage bag was entangled on his dorsal fin. (Id.; Tr. 672). The Coast Guard and the Florida Marine Patrol were called and traffic control was enforced on approaching vessels. (Tr. 441-443). At noontime, Terry Sullivan, the Navy dolphin trainer from San Diego who previously worked with LUTHER, arrived. He placed a recall pinger in the water and LUTHER immediately approached the boat. (Tr. 692 ). Sullivan proceeded to Fleming Key approximately two miles away where a temporary pen was being constructed at the Army Special Forces Dive School. (Tr. 449-450). LUTHER followed the boat as he had been trained. (Tr. 692). Since the pen was not yet complete, Sullivan slowed down and put LUTHER through a series of "tricks" learned at the Navy training facility. These included vocalizing, the hula, bow jumping, hand stationing for physical examination, and leaping out of the water. (Tr. 702-711). When the time came to enter the pen, the dolphin would not follow, and alluded capture. On the following Thursday (May 30), or one week after release, LUTHER was observed near the Boca Chica Naval Station. (Agency Exhibit 49; Tr. 451). He was actually swimming in the sub pens and was captured when the gates to the entrance were closed. (Tr. 453, 678-679).

28. BUCK was not seen until approximately one week after the release. The Dolphin Research Center at Grassy Key was notified that a friendly dolphin approached a boat off Lignum vitae Key, 80 miles west of Key West. (Tr. 610) The Research Center also received another report a few days later from a woman reporting that she swam and played with a friendly dolphin with a tattoo on its dorsal fin off Islamorada. (Tr. 612, 615). Later, on June 4, a dolphin in Vaca Cut near Marathon, Florida approached Ms. Martha Smith. It was friendly and allowed Ms. Smith to pet its belly. (Tr. 722). She called the Dolphin Research Center and Ms. Erb and Ms. Rodriquez responded immediately. (Tr. 726). A pinger was placed in the water and BUCK appeared almost instantaneously. (Tr. 727). The dolphin followed the boat back to the DRC where he was secured. (Tr. 728).

29. Neither Good nor O'Barry participated in the search and re-capture efforts. They made no attempt to monitor the dolphins after the release. (Tr. 602-609, 679-680). O'Barry left the country one-week after the release (Tr. 1012).

D. Aftermath

30. The first veterinary examination of LUTHER occurred one week after his release on May 30, 1996. (Tr. 753). Dr. William Van Bonn observed that the dolphin appeared underweight and had sustained three lacerations on his right side below the dorsal fin. (Tr. 757-769; Agency Exhibit 55, 56, 57). He opined that these cuts were infected and were probably caused by a propeller or from something that fell on the animal or that was scraped against it. (Tr. 762-764). Also, he noted that the tissues around the dolphin's eyes had darkened indicating dehydration or sleep deprivation. (Tr. 759). Finally, the Doctor noted the dolphin had a "macule" or bruise on the underside of the posterior section. (Tr. 767-768). Dr. Van Bonn concluded that the dolphin's condition was fair and on a poor plane of nutrition. (Tr. 768-769). He felt that the animal's condition would have deteriorated without intervention. (Id.).

31. Dr. Van Bonn examined BUCK on June 4, the day the dolphin was recaptured. (Tr. 771). The Doctor observed BUCK was significantly underweight, had several infected lacerations on the left side of his body, and had a puncture wound on his dorsal fin. (Tr. 779-781; Agency Exhibit 61). He assessed BUCK'S condition as poor and stated that absent veterinary intervention, the dolphin's prognosis was guarded. (Tr. 783-784). The Navy employs Dr. Van Bonn as a clinical veterinarian for the marine mammal program at the San Diego facility. (Tr. 750).

32. Dr. Gregory Bossart, a veterinarian from the University of Miami, examined the dolphins on June 12, 1996. (Tr. 466). By then, LUTHER had been returned to captivity for twelve days and BUCK for one week. (Tr. 467). Dr. Bossart noted that LUTHER had sustained propeller injuries but that his weight was within normal limits. (Tr. 467-468). The Doctor observed that a propeller probably caused BUCK's wounds too. (Tr. 477). Also, he was underweight and suffered serous fat atrophy. (Tr. 471; Agency Exhibit 66). He opined that this condition typically occurs in an animal in an advanced state of nutritional compromise. (Tr. 471-472). Terminally ill or stranded marine mammals that have not eaten for quite a period of time are most frequently seen in this condition. (Tr. 473-476). The Doctor concluded that releasing these dolphins into the wild was inappropriate and should be considered inhumane. (Tr. 477-478).

33. The remaining dolphins at the Sanctuary, beyond Mr. Good's pet, SUGAR, were JAKE and MOLLY. On May 30, 1996, one week after the release, the Secretary of Agriculture suspended Sugarloaf Dolphin Sanctuary's Exhibitor's License on the grounds that the Sanctuary had committed multiple violations of the Animal Welfare Act. (Agency Exhibit 50). APHIS concluded that the Act was violated when the Sanctuary allowed the dolphins to leave their facility and swim in open water. Also, that Agency concluded that the Sanctuary failed to establish an adequate program of veterinary care for the dolphins. A warrant authorizing seizure of the dolphins was issued on June 6, 1996. The following day JAKE and MOLLY were seized by the NMFS. (Agency Exhibit 50-51).

34. JAKE was returned to the Navy facility in San Diego where the dolphin died in February 1999. (Respondent's Exhibit C). MOLLY was sent to the Dolphin Research Center where she remains today.

V. Ultimate Findings of Fact and Conclusions of Law

1. Respondents O'Barry, Good, Sugarloaf Dolphin Sanctuary, and the Dolphin Project are "persons" within the meaning of the Marine Mammal Protection Act of 1972. 16 U.S.C. § 1362(10).

2. The 1994 Amendments to the MMPA did not divest the Secretary of all authority to regulate the maintenance and transportation of captive marine mammals. 16 U.S.C. §§ 1362(12)(A)(i), 1371(a)(1), 1373, 1374. As such, the Respondents are subject to the jurisdiction of the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service.

3. The MMPA imposes a moratorium on the "taking" of marine mammals, and applies to all marine mammals taken after October 21, 1972 (the enactment of the statute). 16 U.S.C. §§ 1371(a) and 1372(e).

4. The term "take" means to "harass, hunt, capture, or kill or attempt to harass, hunt, capture or kill a marine mammal." 16 U.S.C. § 1362(13).

5. The MMPA only authorizes "takings" to occur pursuant to a permit issued by the Secretary of Commerce for the purpose of public display, scientific research, or to enhance the survival or recovery of a species or stock. 16 U.S.C. § 1371(a)(1).

6. The Secretary of Commerce has delegated authority to issue permits authorizing "takings" to the National Marine Fisheries Service, which is a subagency of NOAA.

7. Public Display Permit No. 896 issued to Respondent Sugarloaf Dolphin Sanctuary on March 25, 1994, only authorized the Corporate Respondent to hold dolphins for public display. A special condition was placed in the permit, which specifically stated: "No marine mammal may be released into the wild unless such a release has been authorized under a separate scientific research permit that has been issued for the purpose."

8. The 1994 Amendments to the MMPA did not invalidate Public Display Permit No. 896 issued to Respondent Sugarloaf Dolphin Sanctuary. 16 U.S.C. § 1374, note.

9. The imposition of the requirement that release of dolphins into the wild may only occur pursuant to a scientific research permit was a valid exercise of authority by the NMFS under 16 U.S.C. §§ 1374(b)(2) and (c)(1).

10. Under 16 U.S.C. § 1374(c)(2)(B)(iii), a permit holder may, without need of an additional permit, transfer possession of a marine mammal to another person for purposes of public display, scientific research, or enhancement.

11. Releasing a marine mammal into the wild does not constitute a transfer to another person within the meaning of the MMPA. 16 U.S.C. § 1362(12).

12. The Respondents failed to obtain a scientific research permit that authorized the release of captive marine mammals into the wild.

13. The Agency has established that the release of the dolphin known as LUTHER into the Gulf of Mexico, off the coast of Key West, (wild) on May 23, 1996 by Respondents O'Barry and Good resulted in a "take" in violation of 16 U.S.C. § 1372(a)(2)(A) of the MMPA.

14. The Agency has established that the release of the dolphin known as BUCK into the Gulf of Mexico, off the coast of Key West, (wild) on May 23, 1996 by Respondents O'Barry and Good resulted in a "take" in violation of 16 U.S.C. § 1372(a)(2)(A) of the MMPA.

15. Under the theory of respondeat superior, Respondents Sugarloaf Dolphin Sanctuary and the Dolphin Project are liable for violating 16 U.S.C. § 1372(a)(2)(A).

16. The MMPA prohibits any person from transporting a marine mammal for any purpose "other than public display, scientific research, or enhancing the survival of a species or stock as provided for under subsection 1374(c)." 16 U.S.C. § 1372(a)(4)(B).

17. The Agency has established that Respondents O'Barry and Good transported LUTHER on May 23, 1996, for a purpose other than public display, scientific research, or enhancement in violation of 16 U.S.C. § 1372(a)(4)(B).

18. The Agency has established that Respondents O'Barry and Good transported BUCK on May 23, 1996, for a purpose other than public display, scientific research, or enhancement in violation of 16 U.S.C. § 1372(a)(4)(B).

19. Under the theory of respondeat superior, Respondents Sugarloaf Dolphin Sanctuary and the Dolphin Project are liable for violating 16 U.S.C. § 1372(a)(4)(B).

20. Under 16 U.S.C. § 1374(c)(2)(E), no marine mammal held pursuant to a permit issued for purposes of public display, scientific research, or enhancement may be transported unless the Secretary of Commerce is notified of such action no later than 15 days in advance, and such action is for purposes of public display, scientific research, or enhancing the survival or recovery of a species or stock.

21. The Agency has established that Respondents Sugarloaf Dolphin Sanctuary failed to notify the Secretary of Commerce of the intent to transport the dolphin known as LUTHER 15 days in advance in violation of 15 U.S.C. § 1374(c)(2)(E).

22. The Agency has established that Respondents Sugarloaf Dolphin Sanctuary failed to notify the Secretary of Commerce of the intent to transport the dolphin known as BUCK 15 days in advance in violation of 15 U.S.C. § 1374(c)(2)(E).

23. Under the MMPA, the duty to provide notice of transport falls upon the permit holder, or the transferee that acquired the dolphins from the permit holder. 16 U.S.C. § 1374(c)(2)(E). Since the Dolphin Project was neither a permit holder nor a transferee, Counts V and VI are found not proved.

24. Count VII is found not proved because the Department of Agriculture ("APHIS") did not provide Respondent Sugarloaf Dolphin Sanctuary and the Dolphin Project with sufficient notice that the Exhibitor's License had been suspended.

VI. Opinion

A. Preliminary Matters

The facts of this case are not in dispute. The Respondents concede that each of the events occurred. However, the Respondents challenge whether subject matter jurisdiction exists and question the validity of the scientific research permit requirement imposed in Public Display Permit No. 896. After careful review of the applicable law and facts of this case, I find that the Respondents' objections are not well taken.

1. Subject Matter Jurisdiction: The Effect of the 1994 Amendments to the Marine Mammal Protection Act At the outset of the hearing, the Respondents renewed their objection to subject matter jurisdiction. The Respondents contend that NMFS no longer has authority under the 1994 Amendments to the MMPA to regulate the care, maintenance and transportation of captive marine mammals held for public display. According to the Respondents, APHIS is solely responsible for establishing standards of care, maintenance and transportation. Thus, in Respondents' view, Public Display Permit No. 896 is rendered void because the 1994 Amendments to the MMPA divested the Secretary of Commerce of all authority to regulate care, maintenance and transportation of captive marine mammals held for public display. U.S. Administrative Law Judge Joseph N. Ingolia, in a prior Order dated March 10, 1998, rejected this same argument. In that Order, Judge Ingolia denied espondents' Motion to Dismiss based on lack of subject matter jurisdiction. After carefully examining the 1994 Amendments and the legislative history, the Judge correctly concluded that jurisdiction exists. There is no reason to depart from Judge Ingolia's prior ruling. This is especially true where the plain language of the current law and the legislative history demonstrate that the Secretary of Commerce retains authority over captive marine mammals held for public display.

Congress specifically enacted the Marine Mammal Protection Act in 1972 to protect marine mammals, including dolphins, from the adverse effects of human activities. 16 U.S.C. § 1361(1). To achieve this goal, Congress imposed a moratorium on the "taking" of marine mammals. 16 U.S.C. § 1371(a). Congress, however, provided several exceptions to the moratorium against takings. One exception is that marine mammals may be taken under the authority of a permit issued by the Secretary of Commerce through NMFS for purposes of scientific research, public display, education, or to enhance the survival or recovery of a species or stock. 16 U.S.C. § 1371(a)(1).

The legislative history of the MMPA shows that prior to 1994, the NMFS issued public display permits only to facilities that were registered or licensed by APHIS under the Animal Welfare Act. Marine Mammal Protection Act Amendments of 1994, 140 Cong. Rec. E.560, 103rd Cong., 2nd Sess. (daily ed. Mar. 24, 1994)(statement of Hon. Gerry E. Studds). Although the law did not require this, the practice developed pursuant to a Memorandum of Understanding entered into between the Departments of Agriculture, Interior, and Commerce on September 20, 1979. Id. On April 30, 1994, Congress amended the MMPA and codified this practice into law to ensure that MMPA public display permits were only issued to facilities that were registered or licensed by APHIS. Pub. L. 103-238, 108 Stat. 532, 537-538 (1994)(codified at 16 U.S.C. § 1374(c)(2)(A)). Under the statute, this did not render existing public display permits issued before the enactment of the 1994 Amendments null and void, nor did it alter the responsibility of the Secretary of Commerce in issuing public display permits. See, 16 U.S.C. § 1374, note (1994). Therefore, the Respondents objection to subject matter jurisdiction is overruled.

2. The Necessity of a Scientific Research Permit

When Respondent Sugarloaf Dolphin Sanctuary applied for a public display permit, NMFS was concerned about the potential release of captive marine mammals into the wild. (Tr. 166-167). But, according to the testimony of Ann Terbush, Chief of Permits Division of NMFS, said concerns alone were insufficient to deny the application for a public display permit where the Respondents met all the necessary requirements. Id. Therefore, the NMFS attempted to alleviate the concerns by placing a special condition in the public display permit that clearly prohibited the release of marine mammals into the wild, except under the authority of a separate scientific research permit. (Agency Ex. 9).

Special Condition 8 in Public Display Permit No. 896 issued to Respondent Sugarloaf Dolphin Sanctuary on March 24, 1994 specifically states:

No marine mammal obtained under this permit may be released into the wild unless such a release has been authorized under a separate scientific research permit that has been issued for that purpose. Id. (Emphasis added).

The language in the permit is clear and is not subject to interpretation. Therefore, under the terms of the permit, the dolphins could only be released into the wild under a separate scientific research permit.

In issuing a permit for purposes of scientific research, public display or enhancement, Congress requires NMFS to specify:

(A) the number and kind of animals which are authorized to be taken or imported, (B) the location and manner . . . in which they may be taken, or from which they may be imported, (C) the period during which the permit is valid, and (D) any other terms or conditions which [is] deemed appropriate.

16 U.S.C. § 1374(b)(2). The NMFS is also mandated under 16 U.S.C. § 1374(c)(1) to specify "the methods of capture, supervision, care, and transportation which must be observed."

Based upon the statutory obligations imposed upon NMFS and contrary to the Respondents' assertion, there was nothing "illegal" about requiring them to obtain a separate scientific research permit that specifically authorized release of captive marine mammals into the wild. As a matter of fact, Congress expressly endorsed that release of captive marine mammals into the wild should only occur pursuant to a scientific research permit. (Agency Exhibit 6 (Conference Report on H.R. 4650, Department of Appropriations Act 1995, 140 Cong. Rec. H9607, H9643 (Sept. 26, 1994)).

Moreover, nothing in the MMPA authorizes a public display permit holder to release a captive marine mammal into the wild without first obtaining an additional permit. Section 104(c)(2)(B) of the MMPA states that a public display permit holder may only, without obtaining an additional permit, transfer a captive marine mammal permit to another "person" for limited purposes of scientific research, public display or enhancement. 16 U.S.C. § 1374(c)(2)(B). The definitional section of the MMPA states that the "term person includes (A) any private person or entity, and (B) any officer, employee, agent, department, or instrumentality of the Federal Government, of an State or political subdivision thereof, or of any foreign government." 16 U.S.C. § 1362(10). As the Agency pointed out in its post-hearing brief, releasing marine mammals into the wild does not constitute a transfer to another "person" within the meaning of the MMPA. Accordingly, under 16 U.S.C. § 1374(c)(2)(B), an additional permit was required.

The additional permit that was required is a scientific research permit. During the hearing, three valid reasons were established for requiring releases into the wild to be conducted pursuant to a scientific research permit. First, release of captive marine mammals into the wild is purely experimental and there is little documented success of attempts to reintroduce marine mammals in the wild. (Tr. 149; Agency Exhibit 6). According to NMFS, a scientific research permit is the best way to obtain data and acquire knowledge and information that may be useful in future conservation release efforts. (Tr. 149). Second, applications for scientific research permits are subject to peer review by the Marine Mammal Commission Board of Scientific Advisors, the scientific community, and the public. (Tr. 150). This process allows the experiment to be designed in a way that maximizes the likelihood of success. (Tr. 150-151). Third, and most importantly, the scientific research permit insulates the researcher from liability under the MMPA in the event that a "take" occurs. (Tr. 152).

The facts in this case show that the Respondents had previously agreed, in writing, to obtain all necessary permits from NMFS before any release of the dolphins occurred. (Agency Ex. 33 and 34). In a Memorandum of Understanding dated October 1994, Sugarloaf Dolphin Sanctuary agreed "to have all proper permits, licenses and certifications in accordance with the MMPA and the AWA." ( Agency Exhibit 33). In a subsequent agreement, the Sugarloaf Dolphin Sanctuary further agreed "that all necessary legal release permits will be obtained from the National Marine Fisheries Service before any release occurs." (Agency Exhibit 34). Both agreements were signed by Respondent Good in his capacity as Director of Sugarloaf Dolphin Sanctuary.

The evidence further shows that the Respondents were fully aware that Public Display Permit No. 896 only authorized them to possess the dolphins for public display purposes. The language in the permit and the cover letter addressed to Respondent Good made it perfectly clear that in order to release the dolphins into the wild Respondents first must obtain a separate scientific research permit. See, (Agency Exhibit 9). The Respondents also received numerous warnings from NMFS that releasing the dolphins into the wild without a scientific research permit poses a significant risk of a "taking" occurring in violation of the MMPA. (Agency Exhibit 15, 20, 21, 25, 30). Yet, the Respondents totally disregarded the scientific research permit requirement and openly defied NMFS by releasing LUTHER and BUCK into the wild.

B. Marine Mammal Protection Act Violations

1. Counts I and II: Taking by Harassment

The MMPA makes it unlawful for any person to "take" any marine mammal in waters or on lands of the United States. 16 U.S.C. § 1372(a)(2)(A). "The term 'take' means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill." 16 U.S.C. § 1362(13). The term "harassment" is defined under 16 U.S.C. § 1362(18)(A) as:

Any act of pursuit, torment, or annoyance which- (i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.

In Counts I and II, the Agency alleges that the collective Respondents did "take" by harassment the dolphins respectively known as LUTHER and BUCK. The Agency has established that LUTHER and BUCK were both inadequately prepared for survival in the wild. The evidence shows that the Respondents' release efforts were unsuccessful because Respondents failed to: 1) follow a behavioral conditioning program that adequately prepared the dolphins for survival in the wild; 2) return both dolphins to their original stock in Mississippi Sound; and 3) adequately monitor both dolphins after they were released. (Tr. 856-857). The Agency argues that the failure to adequately prepare the dolphins for survival in the wild constitutes an "annoyance" that had the potential to both injure and disturb the dolphins.

The Respondents contend that their actions do not constitute a violation of the MMPA. Respondent Good believes that the dolphins would have been fine had they been left alone. But according to both Respondents, the release effort was "sabotaged by the captive industry" who, in conjunction with the Government, manufactured an emergency so they could engineer a recapture of the dolphins for political reasons. The Respondents' conspiracy theory is unsubstantiated and does not serve as an adequate defense.

While it is true that the release of captive dolphins into the wild in and of itself does not constitute a "take" under the MMPA, the injury or potential injury to the dolphins that occurs as a result of the release does amount to a "take." Here, the facts show that LUTHER and BUCK both lacked the necessary skills for survival in the wild. Neither dolphin could forage for food, avoid predators, integrate with wild stocks, and avoid interactions with humans. (Tr. 826-827). Both dolphins were found begging for food and looking for handouts in areas of heavy boat traffic. (Tr. 425-428, 438-445, 599, 613, 615; Agency Exhibit 48, 54). As a result, the dolphins suffered from various injuries. When Dr. Van Bonn first examined LUTHER, it was noted that the dolphin was a little underweight. (Tr. 757). LUTHER had approximately three lacerations on his right dorsal fin. (Tr. 466-469, Tr. 758, 762-763; Agency Exhibit 56, 57, 66). The three lacerations were short, wide, and very deep - to the point of exposing the underlying dermis fat tissue. (Tr. 468). The lacerations were also curved and were consistent with propeller wounds. Id. LUTHER also suffered bruises and dehydration. (Tr. 768-769; Agency Exhibit 55). The dolphin's condition was assessed as fair and on a poor plane of nutrition. (Tr. 768-769).

BUCK, on the other hand, had a bacterial infection and also had multiple lacerations that were very similar to the ones that were found on LUTHER; except, the lacerations were on BUCK's left dorsal fin. (Tr. 470, 775, 779-781; Agency Exhibit 60, 61, 62, 66). The lacerations were also short, deep, and wide. (Tr. 470; Agency Exhibit 66). The lacerations were consistent with a small-diameter boat engine propeller. (Tr. 477; Agency Exhibit 66). BUCK was also significantly underweight by approximately 50 to 100 pounds. (Tr. 474, 775-778, 781-782; Agency Exhibit 63, 66). A physical exam revealed that BUCK had "serous fat atrophy," which is a pathologic state characterized by degeneration of fat and the replacement of fat with serous fluid. (Tr. 471-473; Agency Exhibit 66). BUCK also had signs of a stomach infection that is seen in quite a few singular stranded marine mammals and his immune system was very low. (Tr. 475 476). The dolphin's condition was assessed as poor and on a poor nutritional plane. (Tr. 781). Several weeks later, Dr. Bossart evaluated BUCK and concluded that the dolphin could die without proper care. (Tr. 476-477).

Respondent O'Barry argues that the weight loss experienced by BUCK and the lacerations suffered by both dolphins are not serious. However, under the MMPA, liability attaches upon a showing that an act caused injury or had the potential to cause injury to a marine mammal. 16 U.S.C. § 1362(18)(A). The severity of said injury is a factor that may be considered in determining the size of the penalty, but even where the injury is minimal, it is insufficient to absolve one of liability under the MMPA. Respondents Good and O'Barry are clearly liable for committing a "take" in violation of the MMPA, and the Corporate Respondents are also liable under the theory of respondeat superior.

2. Counts III and IV: The Illegal Transport

Count III alleges that Respondents, O'Barry, Good, the Sanctuary, and The Dolphin Project transported LUTHER for a purpose other than public display, scientific research, or enhancing the survival of a species or stock, in violation of 16 U.S.C. § 1372(a)(4)(B). Count V is nearly identical and alleges that same violation in connection with the dolphin BUCK. The provision of the MMPA relied upon makes it unlawful for any person (among other things) to ". . . transport . . . any marine mammal . . . for any purpose other than public display, scientific research or enhancing the survival of a species or stock . . ." The circumstances surrounding the transportation of LUTHER and BUCK from Sugarloaf to the Mud Key area in the Gulf where they were released are described at Findings of Fact Nos. 24-25 infra. They will not be repeated here.

Both O'Barry and Good candidly testified at the hearing that the dolphins were transported and released to avoid seizure by the Government. (Tr. 1000, 1029). Mr. O'Barry admitted that what he did was wrong (Tr. 976, 981), but was an act of desperation to give the dolphins a "fighting chance at freedom". (Tr. 975). When asked what he thought of the release after seeing videos at the hearing of the treatment of the dolphins at Sugarloaf in the months preceding the release when he was not at the Sanctuary, O'Barry testified (Tr. 1014-1015):

A. ". . . And it wasn't ethical. I did not believe at this time it was responsible. I'm wrong about that one.

Q. You no longer stand by that statement it was responsible?

A. Not all of the statement, no. It was not responsible. It was irresponsible. It was a desperate attempt, a last-ditch effort to get them back into the sea, the Gulf of Mexico where they came from."

Mr. Good testified too, that the release of the dolphins was an "act of desperation . . ." and ". . . an act of civil disobedience . . .". (Tr. 1029). He was faced with a decision to let the dolphins ". . . be confiscated from Sugarloaf or to drive them out with Rick O'Barry and assist putting them off of Key West." (Tr. 1060). Mr. Good took full responsibility for what happened at Sugarloaf. (Tr. 1065). When asked on cross-examination what his motivation was in releasing the dolphins, he testified that they were released to avoid being seized by the Government. (Tr. 1084). When asked if this was the way he wanted to conduct the release, he testified: No, of course not. It was the one thing I said from the beginning. I would never put a dolphin in a do or die situation." (Tr. 1085). He also admitted this was the worse way to do it. (Tr. 1085). Thus, there is no question here that the transportation of LUTHER and BUCK was not for any of the three enumerated purposes recognized by the Marine Mammal Protection Act. This count is Proved.

With regard to the individuals responsible for the illegal transport the Respondent Good was driving the boat with the dolphins aboard. (Tr. 45). The video, (Agency Exhibit 45) shows Mr. O'Barry and his son, Lincoln, tending to the dolphins as the boat proceeded to the release location. Both individuals wore their Dolphin Project caps and both are on the Board of Directors at that facility. (Agency Exhibit 2). Moreover, all three men were involved in dumping the dolphins overboard. (Agency Exhibit 45). Both Good and O'Barry and the entities they control (the Sanctuary and The Dolphin Project) must bear responsibility for this illegal transport.

3. Counts V and VI: The Failure to Notify NMFS

These counts assert that the Respondents Sugarloaf Dolphin Sanctuary and The Dolphin Project transported LUTHER (Count V) and BUCK (Count VI) without notifying the Secretary of Commerce (NMFS) of such action no later than 15 days before the transport in violation of 16 U.S.C. § 1374(c)(2)(E). That section of the Marine Mammal Protection Act, (as relevant here), requires that no marine mammal held under a permit issued under the Act, like Permit No. 896 issued to the Sanctuary to hold up to 12 Atlantic Bottlenose Dolphins, can be transported without notifying NMFS at least 15 days beforehand. The provision goes on to state that the Secretary of Commerce may only require the notification to include information necessary for the inventory of marine mammals established under this same provision. See 16 U.S.C. § 1374 (c)(10)(E).

The Agency asserts that this was a serious violation since the Respondents fully understood that if they notified NMFS of their intention to transport BUCK and LUTHER for the purpose of release, they would have been prohibited from doing so. Mr. Good asserts that the lack of notification here is a technical violation only since the essential purpose of the provision is to help NMFS maintain an accurate inventory of marine mammals in captivity.

There is no serious question on this record that the violation occurred, and that the NMFS would have intervened to stop the transfer if the Agency had been notified. Clearly, the notification requirement as it pertains to this case is not merely a bookkeeping matter. The failure to notify was intentional and was part of the surreptitious plan to release LUTHER and BUCK before NMFS could intervene. (Tr. 1001). It is a serious violation and an integral part of the illegal scheme of release. The Sugarloaf Sanctuary was the permit holder of the dolphins LUTHER and BUCK and is the entity that is liable. It is noted that The Dolphin Project and the Sanctuary are charged under Counts V and VI. Yet, on brief, the Agency asserts that liability rests exclusively on the Sanctuary. I agree. The Sanctuary was the permit holder at all times. It had the duty to notify the Agency of the transfer. Thus, Sugarloaf and its directors and officers at the time are the ones who must bear the responsibility for the violation. Although the Dolphin Project is identified as a Respondent on these counts it never held a permit for these or any other dolphins as far as is known from the record. Therefore, The Dolphin Project did not have a permit holder's obligation under the Act to notify NMFS of the transport. The permit holder here is the Sanctuary and its officers and directors.

4. Count VII: The Revocation of the Sanctuary's Exhibitor's License and the Seizure of JAKE and MOLLY

The final Count in the NOVA charges Respondents Sugarloaf Dolphin Sanctuary and the Dolphin Project with possessing the dolphin JAKE without holding an Exhibitor's License Issued by APHIS.

The MMPA only authorizes a public display permit to be issued to a person who-

(i) offers a program for the education or conservation purposes that is based on professionally recognized standards of the public display community; (ii) is registered or holds a license issued under section 2131 et. seq. of Title 7; and (iii) maintains facilities for the public display of marine mammals that are open to the public on a regularly scheduled basis and that access to such facilities is not limited or restricted other than by charging of an admission fee.

16 U.S.C. 1374(c)(2)(A).

The Agency argues that the Sugarloaf Dolphin Sanctuary violated the MMPA by possessing JAKE after the Exhibitor's License was suspended. The evidence shows that Respondent Sugarloaf Dolphin Sanctuary initially possessed an Exhibitor's License that was issued by APHIS. (Agency Exhibit 7). That license was suspended on May 30, 1996. (Agency Exhibit 50). The license was primarily suspended to enable the NMFS to secure a warrant to seize JAKE, LUTHER, and BUCK. NMFS and APHIS had decided to seize the dolphins in response to multiple reports that the dolphins were permitted to leave their enclosure and enter open water, despite repeated warnings that the release of dolphins into the wild is a violation of the Animal Welfare Act ("AWA") and the MMPA. (Agency Exhibit 50; Tr. 454). The Respondents, however, learned of the Agency's plan to seize the dolphins and released LUTHER and BUCK before the suspension became effective.

On May 30, 1996, APHIS informed Respondent Sugarloaf Dolphin Sanctuary that the Exhibitor's License had been suspended. The suspension was effective immediately and was to last for a period of 21 days. APHIS also brought a separate action against Sugarloaf Dolphin Sanctuary and Mr. Good for multiple violations of the AWA. That matter, however, was settled and Sugarloaf Dolphin Sanctuary and Mr. Good surrendered their Exhibitor's License. (Agency Exhibit 52; Tr. 456-457). Based upon that suspension, NMFS applied for and was issued a warrant to seize JAKE. (Agency Exhibit 50, 51). Both JAKE and MOLLY were seized approximately seven days after the Sanctuary's Exhibitor's License was suspended. (Tr. 454-456).

Although the suspension of the Exhibitor's License and the subsequent seizure of the dolphins may have been proper, the Agency's argument in support of Count VII is flawed. The Respondents' clearly did not have enough time after being notified of the suspension of the Exhibitor's License to arrange for the dolphins to be transported to another Federally authorized facility. The law, itself, requires Respondents to notify NMFS at least 15 days in advance of intent to transport a marine mammal. See, 16 U.S.C. § 1374(c)(2)(E). At the very least, Respondents should have been given a reasonable opportunity to arrange for the dolphins to be relocated to another public display facility. Count VII is Not Proved.

C. The Penalties

1. The Amount of the Penalty

In response to the violations set forth in the NOVA, the Agency has proposed a civil penalty totaling $ 60,000. The MMPA authorizes the assessment of a maximum civil penalty of $ 10,000 against any person who violates any provision of the Act or any permit or regulation issued thereunder. 16 U.S.C. § 1375(a)(1). Each unlawful taking is considered a separate offense and, upon a showing of good cause, the civil penalty may be remitted or mitigated. Id. In this case, the civil penalty proposed by NOAA substantially exceeds the penalty recommended in the Agency's Civil Administrative Penalty Schedule ("NOAA's Penalty Schedule"). (Agency Exhibit 68). The Agency, however, argues that the proposed penalty is appropriate given the intentional and flagrant nature of the violations committed by Respondents. I agree.

A review of NOAA's Penalty Schedule indicates that the recommended penalty range established for "takings by harassment" is not absolute. The Agency may depart from the penalty established in NOAA's Penalty Schedule depending on aggravating or mitigating circumstances. Id. See also, In the Matter of: Disney, 1995 NOAA LEXIS 15 (Decided Jun. 6, 1995); In the Matter of: Guarrasi, 3 O.R.W. 437 (NOAA 1991). The aggravating factors include:

1) prior offense or warning;

2) willful, intentional violation;

3) brutal, inhumane taking;

4) large number or quantity involved;

5) biological impact of the violation;

6) proven knowledge of the law;

7) efforts to evade detection; and

8) significant commercial gain that is directly related to the violation.

(Agency Exhibit 68). The mitigating factors include:

1) reasonable mistake of fact;

2) proven official misadvice;

3) demonstrated absence of harm to animals;

4) closeness to allowed conduct;

5) financial loss or other sanction in connection with the violation; and

6) extreme cooperation with the investigators.

Id.

In this case, the presence of several aggravating factors justifies the civil penalty proposed by the Agency for Counts I through IV. First of all, the Agency has established that the Respondents had prior knowledge that the law prohibited release of the dolphins, except under a scientific research permit. Public Display Permit No. 896 and the accompanying cover letter made it perfectly clear that release of the dolphins into the wild without a scientific research permit was prohibited. In addition, the Permit Office for NMFS also sent Respondents a copy of legislative documents that made it clear that a scientific research permit is required before a captive dolphin can be released into the wild. Second, the Respondents had received numerous warnings that the release of the captive dolphins into the wild without a scientific research permit would expose them to liability under the MMPA if a "taking" occurred.

Third, the Respondents admit that they willfully and intentionally released the dolphins into the wild without securing a scientific research permit. Respondent Good describes the release as an act of civil disobedience. This blatant disregard for the law will not to be tolerated. Accordingly, the civil penalties proposed by NOAA for Counts I through IV are deemed appropriate.

In addition, the Agency has established that Counts V and VI are also aggravated violations that justify the assessment of maximum civil penalties. The Respondents admit that the failure to notify NMFS of the desire to transfer the dolphins was intentional. The Respondents wanted to prevent the dolphins from being seized by the Government. However, Respondent Good argues that the failure to comply with the 15 day notice requirement under 16 U.S.C. § 1374(c)(2)(E) is a de minimis violation for which no fine should be assessed. According to Good, notice of transport is a record-keeping requirement so that NMFS knows the location of the dolphins, and even if NMFS had been notified of the transport, they could not object to the transport. (Transcript 1056). I disagree. The notice requirement is not only used for record-keeping purposes, but it also enables NMFS to exercise its enforcement responsibilities under 16 U.S.C. § 1374(c)(2)(D), which allows NMFS to seize any marine mammal held for authorized purposes when a violation of the MMPA has occurred. In this case, the Respondents deliberate failure to notify NMFS 15 days in advance of the transportation of the dolphins was intended and did, in fact, undermine NMFS' ability to enforce the provisions of the MMPA. Accordingly the proposed civil penalties for Count V and VI are deemed appropriate.

Last, since the Agency has failed to prove the violation alleged in Count VII, no penalty will be assessed.

2. Motion in Limine: Ability to Pay

Under the MMPA, a civil penalty may only be remitted or mitigated upon a showing of good cause. 16 U.S.C. § 1375(a)(1) and (g). The MMPA does not specifically require consideration of ability to pay in assessing a civil penalty. Id. Moreover, NOAA procedural regulations do not require the Agency to take into account ability to pay where the statute does not require consideration of ability to pay. 15 C.F.R. § 904.108(a). Nevertheless, the Agency sent Respondents Sugarloaf Dolphin Sanctuary and Good detailed financial interrogatories and request for production of documents because their PPIPS dated April 8, 1998 raised the issue of ability to pay. After the Respondents submitted incomplete responses to the Agency's Financial Interrogatories and Request for Production of ocuments, NOAA filed a Motion in Limine requesting that the Sanctuary and Good be barred from submitting any evidence concerning ability to pay at the hearing. During the hearing, I reserved ruling on this issue. Now, I am prepared to rule on the Agency's Motion in Limine.

The regulations at 15 C.F.R. § 904.108(c) provides that "if a respondent asserts that a penalty should be reduced because of inability to pay, the respondent has the burden of proving such an inability by providing verifiable, complete, and accurate financial information to NOAA." The "financial information relevant to a respondent's inability to pay includes, but is not limited to, the value of respondent's cash and liquid assets, ability to borrow, net worth, liabilities, income, prior and anticipated profits, expected cash flow, and the respondent's ability to pay in installments over time." 15 C.F.R. § 904.108(d). This information must be submitted to Agency counsel at least 15 days in advance of the hearing. 15 C.F.R. § 904.108(e).

In this case, Respondent Sugarloaf Dolphin Sanctuary only responded to the Agency's request for production of documents prior to hearing, on or about January 6, 1999. The response, however, was incomplete. The Sanctuary only provided the Agency with several bank statements from a depleted business checking account and several cancelled checks. At the hearing, Respondent Good, on behalf of the Sanctuary, introduced a federal income tax return form for 1997 (Agency Exhibit E), and after the hearing, federal income tax return forms for 1994, 1995, 1996, and 1997 were also submitted on behalf of the Sanctuary. (Agency Exhibit II, JJ, KK, and LL). However, the Sanctuary did not respond, and has not responded, to the Agency's interrogatories.

On January 6, 1999, Respondent Good responded to the Agency's interrogatories and the request for production of documents. Although Good provided adequate answers to the financial interrogatories, his response to the request for production of document was incomplete. He failed to provide actual tax returns, bank statements for the preceding four years, and other documents that he intended to produce at trial. During the hearing, Respondent Good stated that "the lack of documents in the response was due to the fact that his truck was stolen in ecember 1997." (Tr. 38). According to Good, the tax returns were in the truck. Furthermore, Respondent Good admitted at the hearing that ability to pay was not an issue that he had interest in pursuing and it was merely an argument his former attorney raised. (Tr. 39). I believe the tax returns are documents that are necessary to determine an individual's worth. The Respondent could have requested copies of the tax return from the Internal Revenue Service.

After careful review of the applicable law and facts of this case, I find that Respondent's failed to provide timely and adequate responses to the Agency's Financial Interrogatories and Request for Production of Documents. Therefore, their evidence concerning inability to pay will not be considered. This is consistent with the ruling in In the Matter of: Allin, Inc., et al., 1997 NOAA LEXIS 15 (Decided Aug. 20, 1997). In Allin, Inc., the Administrative Law Judge refused to consider Respondents assertion of inability to pay where the Respondents failed to provide adequate responses to the Agency's request for financial information. Id. The Respondents, in that case, only provided Agency counsel with tax returns but did not provide information concerning cash and liquid assets, ability to borrow, net worth, liabilities, income, prior and anticipated profits, and expected cash flow in compliance with 15 C.F.R. § 904.108(d). Respondents Sugarloaf Dolphin Sanctuary and Good will both be presumed to have the ability to pay the assessed civil penalty.

D. Other Matters

During the course of litigation, several issues arose concerning equal application of the law and other evidentiary matters. Each issue will be discussed in turn.

1. Equal Application of the Law

During the hearing, Respondents Good and O'Barry, argue that they have been the victims of selective enforcement. To support their claim, Respondents provide several illustrations of what they consider is selective enforcement. For instance, Respondent Good argues that in May of 1993, the U.S. Navy sent three dolphins to Epcot Center at Disney World without notifying NMFS and no fine was ever assessed. (Transcript 98). Respondent Good also argues that the U.S. Navy releases dolphins into the ocean on a daily basis and no fine s ever assessed. Id. Respondent Good further claims that certain attractions in Key West offer individuals an opportunity to swim with dolphins and they are not charged with a "take." (Transcript 262-273). Moreover, Respondent O'Barry argues that the NMFS allows the Dolphin Research Center to do open water work under their permit, and no case has ever been brought against them. (Id.; Transcript 642-647).

The Respondents' claim of selective enforcement is unsupported by the record. The Respondents solely rely on their own testimony and do not provide any collaborating evidence to substantiate their claim. Even if the Respondents could establish that the Agency chose to enforce the MMPA in some instances and not in others, the Agency's decision would not be subject to judicial review. Heckler v. Chaney, 471 U.S. 821, 831 (1985). The United States Supreme Court has specifically stated that "an agency's decision to prosecute or enforce . . . [a statute or regulation] . . . is committed to the absolute discretion of the agency. As such, the Respondents' selective enforcement claim is not subject to review by this Judge.

2. Evidentiary Issues

After the hearing, I agreed to hold the record open because Respondent Good wanted an opportunity to organize the documents that he submitted as evidence at the hearing. Those documents were marked as Respondent Exhibit A through HH. In a correspondence dated February 26, 1999, Respondent Good offered thirty-seven (37) additional documents marked Respondent Exhibit II through FFF. The Agency objects to the admission of these new exhibits into the record.

The Agency argues that they would be prejudiced if these exhibits are allowed into evidence without the Agency having an opportunity to cross-examine or offer rebuttal testimony. I agree. Therefore, Respondents Exhibits II through FFF will not be made a part of the record.

In addition, during the hearing, Respondent Good objected to the admissibility of the videotape seized from Jerome Julian of the French film crew. The facts show that Respondent Good does not have standing to challenge the seizure of the videotape. Under the law, standing to challenge seizure under the Fourth Amendment to the United States Constitution is a personal right that cannot be vicariously asserted. Aldermann v. U.S., 394 U.S. 165, 174 (1969); U.S. v. Pierce, 959 F.2d 1297 (5<th> Cir. 1992); U.S. v. Hunt, 505 F.2d 931 (5<th> Cir. 1974). Thus, a Respondent must first establish an ownership or proprietary interest in the property that was seized in order to have standing under the Fourth Amendment. U.S. v. Galanty, 547 F.2d 733 (2d. Cir. 1976), cert. den. 431 U.S. 969 (1977); Jeffers v. U.S., 187 F.2d 498 (D.C. Cir. 1950), aff'd 342 U.S. 48 (1951). Since Respondent Good has failed to show that he either owns the videotape or possesses a proprietary interest in the videotape, his objection is overruled.

VI. Conclusion

The Agency has established that Respondents violated the MMPA. Counts I through IV involving Respondents O'Barry, Good, Sugarloaf Dolphin Sanctuary, and the Dolphin Project are found Proved. Counts V and VI are also found Proved against Sugarloaf Dolphin Sanctuary. The Agency, however, has failed to establish that the Dolphin Project is liable for violations alleged in Count V and VI. The Agency has also failed to establish the allegations contained in Count VII.

VIII.

Order

WHEREFORE IT IS HEREBY ORDERED that a civil penalty in the amount of $ 40,000 be jointly and severally assessed against Respondents Richard O'Barry, Lloyd A. Good, III, Sugarloaf Dolphin Sanctuary, Inc., and The Dolphin Project, Inc.

IT IS HEREBY FURTHER ORDERED that an additional civil penalty in the amount of $ 19,500 be assessed against Respondent Sugarloaf Dolphin Sanctuary.

IT IS HEREBY FURTHER ORDERED that a failure to pay the civil penalty to the Treasurer of the United States within thirty (30) days from the date upon which this decision becomes final Agency Action will result in the total penalty becoming due and payable, and interest being charged at the rate specified by the U.S. Treasury regulations and an assessment of charges to cover the cost of processing and handling of the delinquent penalty. Further, in the event the penalty or any portion thereof, becomes more than ninety (90) days past due, the Respondent may also be assessed an additional penalty charge not to exceed six percent (6%) annum.

IT IS HEREBY FURTHER ORDERED that Counts V and VI be dismissed with prejudice against Respondent the Dolphin Project.

IT IS HEREBY FURTHER ORDERED that Count VII be dismissed with prejudice against Respondents Sugarloaf Dolphin Sanctuary and the Dolphin Project.

Respondent is hereby notified that any petition for administrative review of this decision must be filed within thirty (30) days of this date with the Administrator of the National Oceanic and Atmospheric Administration as provided in 15 C.F.R. § 904.273. Copies of the petition should also be sent to the ALJ Docketing Center, NOAA counsel, and the presiding Judge.

CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing documents(s) upon the following parties and limited participants (or designed representatives) in this proceeding at the address indicated below by Federal Express:

Joel La Bissonniere, Esq. and Robert J. Hogan, Esq. 8484 Georgia Avenue, Suite 400 Silver spring, Maryland 20910

Richard O'Barry c/o Keith Coulbourn 1634 SW 15th Street Miami, FL 33145

The Dolphin Project, Inc. c/o Keith Coulbourn 1634 SW 15th Street Miami, FL 33145

Lloyd Good, III Sugarloaf Lodge Mile Marker 17 Sugarloaf Key, FL 33044

Sugarloaf Dolphin Sanctuary, Inc. Sugarloaf Lodge Mile Marker 17 Sugarloaf Key, FL 33044

Michelle Kuruc, Esq. NOAA, Assistant General Counsel For Enforcement and Litigation 8484 Georgia Avenue, Suite 400 Silver Spring, MD 20910

ALJ Docketing Center 40 S. Gay Street, Room 412 Baltimore,, Maryland 21202-4022

Dated at Norfolk, Virginia, this 8th day of June, 1999.

Anne H. Summers

Legal Assistant to Administrative Law Judge

ATTACHMENT ONE LIST OF WITNESSES AND EXHIBITS

List of Agency's Witnesses::

Ann D. Terbush, Chief of Permit Division, NMFS, Office of Protective Resources, NOAA

Dr. Naomi Rose, Marine Mammal Scientist, HSUS, Dept of Commerce

Robert Schoelkopf, Co-founder of the Marine Mammal Stranding Center New Jersey, U.S. Fish and Wildlife Office, Deputy N. J. Fish Game Deputy

Mr. Charles M. Fuss, Special Agent, U.S. Customs Service, NMFS, NOAA

Dr. Gregory; Bossart, Associate Professor of Pathology, University of Miami, School of Medicine

Mary Lycan, Dolphin Trainer, Dolphin Cove Research and Education Facility, Key Largo, Florida

Christine Jarvis, Resident of Summerland Key, Florida 1995-1996.

Paula Flanagan, Senior Trainer at Dolphin Connection Hawks Key Resort on Duck Key, Florida

Dana Carnegie, Director of Media Relations for the Dolphin Research Center Trevor Spradlin, Marine Mammal Biologist for the Office of Protective Resources, National Marine Service

Kerry Sullivan, U.S. Navy, Marine Mammal System Space and Naval Warfare System

Martha Smith, Resident of Marathon, Florida

Linda Erb, Director of the Animal Care and Training, Dolphin Research Center

Dr. William Van Bonn, U.S. Navy, Clinical Veterinarian, Marine Mammal Program, Space and Naval Warfare Systems Center

Dr. Randall Wells, Chicago Zoological Society, Conservation Biologist

List of Respondents' Witnesses:

Shaney Frey, Writer

Richard O'Barry, Respondent

Lloyd A. Good, III, Respondent Agency's Exhibits:

1. Sugarloaf Dolphin Sanctuary Certificate of Corporate Status Articles of Incorporation Annual Report: 1995

2. The Dolphin Project, Inc. Certificate of Corporate Status Articles of Incorporation Annual Report: 1996

3. 108 STAT. 541, MMPA Reauthorization: Existing Permits

4. Reintroduction to the Wild as an Option for Managing Navy Marine Mammals, Technical Report 1549 1993

5. 16 U.S.C. 1374(c)(2)(B) 1998, Public Display Permit

6. Conference Report: Defense Appropriations, September 1994

7. Application: SDS Public Display Permit dated September 21, 1993

8. Application: SDS Public Display Permit

Supplemental Materials dated October 27, 1993

9. Public Display Permit #896, dated March 25, 1994

10. Marine Mammal Data Sheets (LUTHER, BUCK, JAKE)

11. Application: Welcome Home Project dated October 11, 1994

A. Welcome Home Project (Chart)

12. Letter: Mr. Joe Roberts to Ms. Ann Terbush dated April 14, 1995

13. Miami Herald dated December 6, 1994)

14. Miami Herald dated June 7, 1995

15. Letter: Ms. Ann Terbush to Mr. Lloyd Good dated June 6, 1995

16. Letter: Dr. Morley Cook to Mr. Lloyd Good dated June 6, 1995

A. APHIS response to NMFS

17. Letter: Mr. Rick Spill to Ms. Ann Terbush dated June 29, 1995)

18. Letter: Mr. Lloyd Good to Ms. Ann Terbush July 10, 1995)

19. Letter: Mr. Lloyd Good to Ms. Ann Terbush dated August 2, 1995

20. Letter: Ms. Ann Terbush to Mr. Lloyd Good dated August 16, 1995)

21. Letter: Dr. William Fox to Messrs. Lloyd Good/Richard O'Barry dated September 29, 1995)

22. Letter: Ms. Kathleen Brooks to Dr. William Fox dated October 2, 1995

(Enclosing minutes of SDS Board of Directors)

23. Fax: Mr. Richard O'Barry to Ms. Ann Terbush dated February 5, 1996 (Enclosing minutes of SDS Board of Director)

24. Certified Declaration dated December 28, 1998

25. Letter: Ms. Ann Terbush to Mr. Richard O'Barry dated February 9, 1996

26. Miami Herald article dated April 25, 1996

27. Letter: Mr. Richard O'Barry to Ms. Ann Terbush dated April 25, 1996

28. Letter: Mr. Richard O'Barry to Dr. Joseph Walker dated April 24, 1996

29. Facsimile Ms. Kathleen Brooks to Dr. Rene Cruz dated April 24, 1996

30. Letter: Ms. Patricia Montanio to Mr. Lloyd Good dated April 25, 1996

31. Letter: Mr. Lloyd Good to NMFS dated April 26, 1996

32. Key West Citizen Statement dated October 20, 1996

33. MOA: Navy, Sugarloaf, HSUS

34. Agreement of SDS Regarding the "Navy Dolphin Project"

35. Protocol for the Readaptation and Release of Two Bottlenose Dolphins Known as BOGIE and BACALL

A. Fax Cover Sheet

36. Letter: Dr. John Grandy to Dr. Dale Schwindaman dated May 1, 1996

37. SDS Mission Statement

38. Minutes: SDS Board of Directors dated June 23, 1995

39. Minutes: SDS Board of Directors dated July 3, 1995

40. Settlement Offer: Board of Directors Litigation

41. Photo: Sugarloaf Dolphin Sanctuary (front lagoon)

42. Photo: Sugarloaf Dolphin Sanctuary (back lagoon)

A. Hand drawn chart of lagoon

43. Videotape: Christine Jarvis/Chris Schulz

44. Videotape: Paula Flanagan

45. Videotape: Mac Fuss (Release)

46. NOAA Chart #11434: (Seized from Robert Dumouchel)

47. NOAA Chart #11442: (Key West Area)

48. Aerial Photo: Sunset Marina

49. Aerial Photo: Boca Chica Sub Pens

50. Application and Affidavit for Seizure Warrant

51. Seizure Warrant dated June 6, 1996

52. Consent Decision relative to APHIS violations, August 27, 1996

53. NOAA Chart #11450 (Middle Florida Keys)

54. Videotape - Kerry Sullivan (boat follow)

55. Dr. William Van Bonn - notes/Veterinary Records dated May 31, 1996

56. Photo: LUTHER (full body)

57. Photo: LUTHER (laceration close-up)

58. Photo: LUTHER (freeze brand)

59. Photo: LUTHER (healed laceration)

60. Veterinary Records - BUCK by Dr. William Van Bonn

61. Photo: BUCK (full body)

62. Photo: BUCK (peanut head)

63. Photo: BUCK (vertebral processes)

64. Photo: BUCK (laceration)

65. Photo: BUCK (freeze brand)

66. Veterinary Report: Dr. Gregory Bossart dated June 14, 1996

67. Curriculum Vitae: Dr. Randall Wells

68. NOAA Penalty Schedule

Respondents' Exhibits:

A. Map, Entitled DRC Pool Map, revised September 1, 1993

B. Letter dated June 12, 1995 from Kohn to Cook

C. Page from Sunday February 7, 1999 newspaper with article "Former Keys Dolphin Dies"

D. Protocol for the Readaptation and Release of two captive Atlantic Bottlenose Dolphins (Tursiops truncatus) known as BUCK and LUTHER

E. Short Form Return of Organization Exempt from Income Tax 1997 for Sugarloaf Dolphin Sanctuary

F. Video, Richard O'Barry

G. Animal Care Inspection Report (partial) inspection date for Marine Mammals (2 dolphins) April 23, 1996

H. Article from Animal People, Inc. dated September 1998 (6 pages) with attached memo and an article from the Watchdog and an article from Animal Newsline entitled "Putting Bill Wewer First, March 1991.

I. Memo Dr. Morley Cook to Dr. Barbara Kohn dated June 4, 1995

J. Letter dated November 9, 1995 to Dr. Dale Schwindaman from Mr. Lloyd Good

K. Letter dated September 26, 1995 to Dr. Richard Watkins from Mr. Lloyd Good

L. Letter dated May 22, 1995 to Mr. Lloyd Good from Dr. Morley Cook.

M. Letter dated June 6, 1995 to Mr. Lloyd Good from Dr. Morley Cook

N. Letter dated April 26, 1995 to Dr. Morley Cook from Mr. Lloyd Good

O. Letter dated March 9, 1995 to Mr. Lloyd Good, from Dr. Morley Cook

P. Letter dated February 7, 1995 to Dr. Morley Cook from Dr. Barbara Kohn Staff Veterinarian Animal Care

Q. Letter dated February 6, 1995 to Dr. Morley Cook from Mr. Lloyd Good

R. Response to Request for Open Water Work by Sugarloaf Dolphin Sanctuary dated October 6, 1995 to Dr. Richard Watkins from Dr. Morley Cook

S. Letter dated December 20, 1994 to Mr. Lloyd Good from Dr. Richard Crawford

T. Letter dated March 9, 1995 to Mr. Lloyd Good from Dr. Morley Cook

U. Letter dated February 6, 1995 to Dr. Morley Cook from Mr. Lloyd Good

V. Release with subject: Sugarloaf Dolphin Sanctuary dated April 28, 1995 to Dr. Morley Cook from Dr. Richard Watkins

W. Article from The Miami Herald dated Friday May 28, 1993

X. Letter to Drs. Morley Cook/Dale Schwindaman from Dr. Barbara Kohn dated May 25, 1995

Y. MMPA Bulletin dated May 25, 1995, Articles from 3<rd> Quarter 1998, Issue No. 12

Z. Letter to Dr. Barbara Kohn undated from Mr. William Medway

AA. NCCOSC letter dated June 30, 1995 to Dr. Barbara Kohn from Dr. R. Brill

BB. Declaration of Joseph R. Geraci, VMD, Ph.D. dated Dec 30, 1995

CC. Marine Mammal Inventory Report dated March 31, 1992

DD. Letter dated April 7, 1994 to Mr. Robert R. Ambridge from Dr. David Stelling

EE. Marine Mammal Inventory Report dated May 26, 1993

FF. Article entitled "Navy dolphin goes AWOL for sex binge" Miami Herald (9/91)

GG. Letter dated June 29, 1995 to Dr. Barbara Kohn from Dr. Sam H. Ridgway

HH. Financial Inventory of Mr. Lloyd A. Good, III (Reserved)

The following exhibits were presented by Respondents at the end of February 11, 1999 hearing::

II. Short Form Return of Organization Exempt from Income Tax 1994 for Sugarloaf Dolphin Sanctuary

JJ. Return of Organization Exempt from Income Tax 1995 for Sugarloaf Dolphin Sanctuary

KK. Short Form Return of Organization Exempt from Income Tax 1996.

LL. Short Form Return of Organization Exempt from Income Tax 1997

MM. Animal Care Inspection Report with date of inspection April 2 3, 1996

NN. Animal Care Inspection Report with date of inspection February 7, 1996

OO. Animal Care Inspection Report with date of inspection January 5, 1996

PP. Animal Care Inspection Report with date of inspection June 30, 1995

QQ. Animal Care inspection Report with date of inspection June 30, 1995

RR. Animal Care Inspection Report with date of inspection June 9, 1995

SS. Animal Care Inspection Report with date of inspection June 5, 1995

TT. Animal Care Inspection Report with date of inspection December 9, 1994

UU. Animal Care Inspection Report with date of inspection November 1, 1994

VV. Animal Care Inspection Report with date of inspection October 4, 1994

WW. Animal Care Inspection Report with date of inspection August 10/11/12, 1994

XX. Animal Care Inspection Report with date of inspection July 5, 1994

YY. Animal Care Inspection Report with date of inspection June 8, 1994

ZZ. Animal Care Inspection Report with date of inspection March 29, 1994

AAA. Animal Care Inspection Report with date of inspection September 14, 1993

BBB. Animal Care Inspection Report with date of inspection August 31, 1993

CCC. Animal Care Inspection Report with date of inspection September 24, 1992

DDD. Animal Care Inspection Report with date of inspection May 14, 1992

EEE. Mr. Lloyd Good's letter dated February 26, 1999 submitting 1 through 35 as listed below: 1. Memo dated December 20, 1994 from Dr. Richard Crawford

2. Letter dated April 28, 1995 to APHIS from Dr. Richard Watkins

3. Sanctuary confiscation papers

4. Open Water letters between Mr. Lloyd Good and APHIS

5. Agency's Exhibit #5. The page of the MMPA pointed to by Ms. Ann Terbush

6. Ms. Ann Terbush letter to Mr. Lloyd Good dated February 7, 1995

7. Sanctuary's Animal Welfare License dated September 17, 1993

8. Ms. Ann Terbush letter to Mr. Lloyd Good dated August 16, 1995

9. Mr. Lloyd Good letter to Ms. Ann Terbush dated July 10, 1995

10. Ms. Ann Terbush letter to Mr. Lloyd Good dated September 29, 1995

11. Technical Report 1549 (same as Agency Exhibit No. 4.)

12. Article: The Miami Herald dated May 28, 199

13. Ms. Ann Terbush letter to Mr. Joe Roberts dated February 14, 199

14. Mr. Rick Spill letter to Gadfly coalition Members dated December 30, 1994

15. Article entitled Animal People dated September 1998

16. Memo from Dr. Barbara Kohn dated May 25, 1995

17. Ms. Ann Terbush letter to Dr. Naomi Rose, Mr. Rick Spill and Mr. Joe Roberts dated June 8, 1995

18. APHIS Inspection Report, April 2 and 3, 1996.

19. Dr. Dale Schwindaman's letter to Mr. Lloyd Good dated June 23, 1995

20. Dr.David Stellings's letter to Mr. Lloyd Good dated April 14, 1994

21. Documents of Navy Dolphin

22. Dr. Barbara Kohn's memo dated June 4, 1995

23. Dr. Barbara Kohn's memo dated June 12, 1995

24. Letter from Mr. Lloyd Good to Dr. Richard Watkins dated September 26, 1995

25. APHIS letter dated October 6, 1995

26. Miami Herald article dated September 1991

27. Article in The Key West Citizen dated February 7, 1999

28. NMFS Marine Mammal Inventory Report of Dr. Joseph Geraci

29. Dr. Morley Cook's letter to Dr. Richard Watkins dated June 9, 1995

30. Dr. Barbara Kohn's memo dated June 23, 1995

31. Dr. Dale Schwindaman's letter to veterinarians dated June 29, 1995. Letters from Drs.Medway, Brill, Ridgway and Analyst Evans to Dr. Schwindaman

32. Dr. Richard Watkins' letter to APHIS dated July 28, 1995

33. Sanctuary Inspection Report dated October 4, 1995 by Dr. Joseph Geraci

34. Sanctuary Inspection Report dated October 6, 1995 by Dr. Barbara Kohn

35. Sanctuary maps, diagrams and photographs.

FFF. Marine Mammal Inventory Report, dated March 25, 1994.

ATTACHMENT TWO

RULINGS ON PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

The only Proposed Findings of Fact and Conclusions of Law were submitted by counsel for NOAA. My rulings are set out below.

A. AGENCY'S PROPOSED FINDINGS OF FACT

1. According to records maintained by the National Marine Fisheries Service (NMFS), numerous dolphins have escaped, or have been released into the wild since 1964.

RULING: ACCEPTED AND INCORPORATED.

2. Most of the past releases of dolphins into the wild were undocumented, yielding little useful information as to the ultimate fate of these dolphins.

RULING: ACCEPTED AND INCORPORATED.

3. To date, there have been only two scientifically documented dolphin release programs. In 1989, two captive dolphins were successfully returned to their home waters in Sarasota Bay, Florida, after living in captivity for two years. The second program involved the release of nine captive dolphins from the now defunct Atlantis Marine Park in Australia.

RULING: ACCEPTED AND INCORPORATED.

4. From a scientific perspective, releasing captive dolphins into the wild is considered experimental.

RULING: ACCEPTED AND INCORPORATED.

5. Scientists question whether formerly captive dolphins can survive in the wild after having spent years in captivity dependent upon humans, whether such animals can forage in the wild, avoid predators, integrate with wild stocks, and avoid interactions with humans and vessels. Additionally, researchers worry about the risks that release may pose to wild stocks, including the risk that captive dolphins will introduce contagious diseases, disrupt essential social structures, pass on harmful learned behaviors, and alter the genetic composition of wild populations.

RULING: ACCEPTED AND INCORPORATED.

6. Concerns about release of captive dolphins are compounded by the fact that no established protocols exist to guide researchers in the proper selection, training, release, and follow-up of candidate dolphins.

RULING: ACCEPTED AND INCORPORATED.

7. Many of the concerns relating to release of captive dolphins were highlighted in a detailed study of a release that was conducted by the United States Department of the Navy in 1993. The experts associated with the Navy's study drew the following conclusions as to the viability of releasing captive dolphins: 1) Possibility of Success. The success of reintroducing marine mammals to the wild would depend upon resources, methodologies, and technologies which do not currently exist; and 2) Unresolved Issues. The risk of mortality to the animals reintroduced and to the populations into which they are inserted cannot be predicted.

RULING: ACCEPTED AND INCORPORATED.

8. In implementing its management responsibilities under the Marine Mammal Protection Act (MMPA), NMFS consistently has taken the position that release of marine mammals should only occur pursuant to a scientific research permit issued under the authority of the MMPA.

RULING: ACCEPTED AND INCORPORATED.

9. The need to obtain a scientific research permit prior to the release of captive dolphins was expressly endorsed by Congress during its discussion of the Department of Defense Appropriations Act for 1995.

RULING: ACCEPTED AND INCORPORATED.

10. Scientific research permits sought under the MMPA are peer reviewed within the scientific community prior to issuance by NMFS.

RULING: ACCEPTED AND INCORPORATED.

11. Approaching release of captive dolphins scientifically, via a scientific research permit and the peer review process, maximizes the likelihood of success of any release, and ensures the acquisition of information useful to others within the scientific community, which may facilitate future releases.

RULING: ACCEPTED AND INCORPORATED.

12. Scientific research permits benefit the researcher, by providing immunity from liability in the event that release results in a "taking" under the MMPA.

RULING: ACCEPTED AND INCORPORATED.

13. Respondent Sugarloaf Dolphin Sanctuary, Inc. (SDS), is a Florida non-profit corporation incorporated in 1993.

RULING: ACCEPTED AND INCORPORATED.

14. SDS's articles of incorporation state that SDS is dedicated to the purpose of fostering research into the rehabilitation and ultimate release of captive dolphins.

RULING: ACCEPTED AND INCORPORATED.

15. SDS was operated almost exclusively by two individuals - Respondents Richard O'Barry and Lloyd Good, III, both of whom were directors of the corporation.

RULING: ACCEPTED AND INCORPORATED.

16. Richard O'Barry is a former dolphin trainer for the 1960's television series "Flipper" and now campaigns worldwide against holding dolphins in captivity.

RULING: ACCEPTED AND INCORPORATED.

17. Richard O'Barry is an officer and director of Respondent The Dolphin Project, Inc. (Dolphin Project), a Florida non-profit corporation which was created in 1975, and was administratively dissolved in 1997, for failure to file its annual report.

RULING: ACCEPTED AND INCORPORATED.

18. Prior to the creation of SDS, Lloyd Good, III's experience with dolphins was largely limited to his role as the principal caretaker for the dolphin SUGAR, a pet dolphin which had lived in captivity at the Sugarloaf Lodge since 1974.

RULING: ACCEPTED AND INCORPORATED.

19. The SDS facility was comprised of a large, naturally enclosed, open water lagoon located adjacent to the Sugarloaf Lodge.

RULING: ACCEPTED AND INCORPORATED.

20. According to SDS literature, for dolphins deemed candidates for release, SDS was to serve as a "halfway house," where they could reacquire necessary survival skills prior to release. For dolphins deemed unable to return to the wild, SDS was to serve as a "retirement home," where they could live out their lives in the company of other dolphins, free of the need to entertain the public in exchange for food.

RULING: ACCEPTED AND INCORPORATED.

21. On September 21, 1993, SDS applied to NMFS for a public display permit.

RULING: ACCEPTED AND INCORPORATED.

22. The public display permit application indicated that SDS planned to acquire two dolphins from the Ocean Reef Club, a public display facility in Key Largo, Florida.

RULING: ACCEPTED AND INCORPORATED.

23. In its application materials, SDS stated that it sought a public display permit in order to hold dolphins in captivity for public display.

RULING: ACCEPTED AND INCORPORATED.

24. The SDS public display permit application materials plainly stated that SDS hoped to operate as a dolphin "halfway house", and ultimately release its dolphins back to the wild.

RULING: ACCEPTED AND INCORPORATED.

25. Given the contents of the SDS public display permit application, concerns were raised that SDS sought to acquire dolphins for release, not public display.

RULING: ACCEPTED AND INCORPORATED.

26. Forty-three public comments were received by NMFS on the SDS public display permit application, with only ten in favor of granting the permit application.

RULING: ACCEPTED AND INCORPORATED.

27. SDS technically met the criteria for obtaining a public display permit, and fears of possible release were not a sufficient basis upon which to deny the application.

RULING: ACCEPTED AND INCORPORATED.

28. A scientific release permit is subject to far different and more rigorous issuance criteria than a public display permit.

RULING: ACCEPTED AND INCORPORATED.

29. On March 25, 1994, NMFS issued Permit No. 896 to SDS. This permit authorized SDS to acquire up to twelve Atlantic bottlenose dolphins for public display.

RULING: ACCEPTED AND INCORPORATED.

30. The cover letter that accompanied the permit specifically stated that the permit only authorized SDS to hold dolphins for public display, and that any release of these dolphins could only occur pursuant to a separately issued scientific research permit.

RULING: ACCEPTED AND INCORPORATED.

31. Permit No. 896 issued to SDS had a special condition that specifically stated: "No marine mammal obtained under this permit may be released into the wild unless such a release has been authorized under a separate scientific research permit that has been issued for that purpose."

RULING: ACCEPTED AND INCORPORATED.

32. Prior to the receipt of public display Permit No. 896, Sugarloaf Lodge maintained one dolphin, a pre-Act female known as SUGAR. SUGAR was, for all intent and purpose, the Good's family pet.

RULING: ACCEPTED AND INCORPORATED.

33. Following the receipt of the public display Permit No. 896, SDS sought to acquire dolphins to maintain and prepare for release.

RULING: ACCEPTED AND INCORPORATED.

34. In August 1994, SDS acquired three female dolphins from the Ocean Reef Club of Key Largo, Florida, known as MOLLY, BOGIE, and BACALL.

RULING: ACCEPTED AND INCORPORATED.

35. On November 30, 1994, SDS acquired three male dolphins from the United States Navy's SPAWAR (Space and Naval Warfare) Systems Marine Mammal Program, San Diego, California, known as JAKE, LUTHER, and BUCK.

RULING: ACCEPTED AND INCORPORATED.

36. As of November 30, 1994, seven Atlantic bottlenose dolphins were housed at Sugarloaf Lodge and SDS. The seven dolphins were SUGAR, MOLLY, BOGIE, BACALL, JAKE, LUTHER, and BUCK.

RULING: ACCEPTED AND INCORPORATED.

37. As of November 30, 1994, SDS consisted of three principals: the Director of the Sanctuary, Lloyd Good, III; the Director of Readaptation and Release, Richard O'Barry; and the Director of Readaptation and Retirement, Rick Trout. All three were co-equals within the organization.

RULING: ACCEPTED AND INCORPORATED.

38. Beginning in the Spring of 1994, the Humane Society of the United States (HSUS) started acting as a facilitator to the SDS project.

RULING: ACCEPTED AND INCORPORATED.

39. HSUS's role as a facilitator to the SDS program included brokering the agreement between SDS and the Navy for the transfer of JAKE, LUTHER, and BUCK. In addition, HSUS agreed to provide advice and financial support and to facilitate necessary permitting and licensing attempts.

RULING: ACCEPTED AND INCORPORATED.

40. In January 1995, SDS enlisted the participation of three additional individuals, asked to serve as directors on the SDS Board of Directors. These three individuals were Mark Berman of the Earth Island Institute, Robert Schoelkopf of the Marine Mammal Stranding Center, and Rick Spill of the Animal Welfare Institute.

RULING: ACCEPTED AND INCORPORATED.

41. Beginning in January 1995, the SDS Board of Directors consisted of Lloyd Good, III, Richard O'Barry, Mark Berman, Robert Schoelkopf, and Rick Spill.

RULING: ACCEPTED AND INCORPORATED.

42. As of January 1995, the SDS Board of Directors was committed to conducting releases of captive dolphins in a scientific manner.

RULING: ACCEPTED AND INCORPORATED.

43. SDS promotional literature stated: "Our primary goals are to prove scientifically that release is a viable and humane alternative to captive perpetuity, and to establish the protocol by which the re-adaptation process can be accomplished."

RULING: ACCEPTED AND INCORPORATED.

44. The participants in the SDS projects understood and agreed early in the project that the releases must occur "legitimately, legally and with sound science."

RULING: ACCEPTED AND INCORPORATED.

45. SDS was initially committed to releasing its dolphins pursuant to a scientific research permit issued by NMFS.

RULING: ACCEPTED AND INCORPORATED.

46. The Memorandum of Understanding transferring the Navy dolphins to SDS stated that no release would occur until "all necessary legal release permits" were obtained from NMFS.

RULING: ACCEPTED AND INCORPORATED.

47. As of November 1994, SDS was operating two separate release projects: the Welcome Home Project and the Navy Dolphin Project.

RULING: ACCEPTED AND INCORPORATED.

48. As of November 1994, the Welcome Home Project involved the readaptation and release of BOGIE and BACALL to their home waters of the Indian River Lagoon near Melbourne, Florida.

RULING: ACCEPTED AND INCORPORATED.

49. The Navy Dolphin Project involved the readaptation and release of JAKE, LUTHER, and BUCK to their home waters of the Mississippi Sound, in the Gulf of Mexico off the coast of Mississippi.

RULING: ACCEPTED AND INCORPORATED.

50. The Welcome Home Project was operated by two different non-profit organizations: The Dolphin Alliance, headed by Joe Roberts, and The Dolphin Project, Inc., headed by Respondent Richard O'Barry.

RULING: ACCEPTED AND INCORPORATED.

51. The dolphins involved in the Welcome Home Project were to be housed and readapted at SDS, then transferred to the Indian River Lagoon for ultimate release.

RULING: ACCEPTED AND INCORPORATED.

52. As of November 1994, the Navy Dolphin Project was operated solely by SDS, which consisted of three principles, Lloyd Good, III, Richard O'Barry, and Rick Trout.

RULING: ACCEPTED AND INCORPORATED.

53. As of November 1994, HSUS was facilitating the Welcome Home Project in much the same manner as it was facilitating the Navy Dolphin Project, by providing advice and financial support and by facilitating necessary permitting and licensing attempts.

RULING: ACCEPTED AND INCORPORATED.

54. Through the release of BOGIE and BACALL, the Welcome Home Project, the Navy Dolphin Project, and HSUS hoped to develop a release protocol that could be used in future releases, including the release of the Navy dolphins.

RULING: ACCEPTED AND INCORPORATED.

55. The Welcome Home Project planned to release BOGIE and BACALL pursuant to a scientific research permit issued by NMFS.

RULING: ACCEPTED AND INCORPORATED.

56. On October 11, 1994, an incomplete application for a scientific research permit was submitted to NMFS by the Dolphin Alliance. The application was incomplete in that it lacked any discussion on the methodology to be used in preparing the dolphins for release. The Dolphin Alliance submitted this incomplete application with the hope of receiving feedback and comments from NMFS as to what additional information would be necessary to obtain a scientific research permit.

RULING: ACCEPTED AND INCORPORATED.

57. From the outset of the Navy Dolphin Project, SDS was marred by strong internal disagreements that were a result of the personality conflicts between Richard O'Barry and Rick Trout.

RULING: ACCEPTED AND INCORPORATED.

58. Because of internal strife between Richard O'Barry and Rick Trout, Rick Trout left SDS and the Navy Dolphin Project only two days after the arrival of the Navy Dolphins at SDS.

RULING: ACCEPTED AND INCORPORATED.

59. The internal strife at SDS persisted following the departure of Rick Trout, mainly because Richard O'Barry and Lloyd Good, III, had different views as to what was the best method of preparing the dolphins of the Welcome Home Project and Navy Dolphin Project for release.

RULING: ACCEPTED AND INCORPORATED.

60. Richard O'Barry believed that prior to a release, handlers must "extinguish" harmful behaviors learned in captivity by refusing to reinforce learned behaviors. Mr. O'Barry referred to this as "dolphin time," a Zen-like process were he becomes part of the scenery, monitoring every move of the dolphins.

RULING: ACCEPTED AND INCORPORATED.

61. Lloyd Good, III, believed that it was impossible to extinguish learned behaviors from dolphins because of their high level of intelligence. Mr. Good maintained that there was no "process" for preparing the dolphins for release, one must simply open the gates and allow the dolphins to come and go at will until the dolphins decided it was time to leave for good.

RULING: ACCEPTED AND INCORPORATED.

62. Lloyd Good, III, repeatedly questioned Richard O'Barry's methods, referring to them as the "readaptation show."

63. In February 1995, NMFS provided detailed comments to the application for a scientific research permit submitted by the Dolphin Alliance on behalf of the Welcome Home Project. NMFS principle comments addressed the need for greater detail of the release protocol.

RULING: ACCEPTED AND INCORPORATED.

64. By the spring of 1995, the people involved with the Welcome Home Project and the Navy Dolphin Project, including the other board members of SDS, began to question Richard O'Barry's and Lloyd Good, III's, intent to proceed with the release projects in a scientific manner as initially envisioned.

RULING: ACCEPTED AND INCORPORATED.

65. In June 1994, Richard O'Barry agreed to assume responsibility for preparation of a written release protocol to be included in the application for a scientific research permit. As of the Spring of 1995, no protocols had been forwarded by Mr. O'Barry despite repeated requests from the Dolphin Alliance's Joe Roberts and the HSUS.

RULING: ACCEPTED AND INCORPORATED.

66. In the Spring of 1995, in an effort to assist Richard O'Barry with the development of release protocols, SDS, at the urging of the Welcome Home Project's Joe Roberts, hired Mary Lycan to draft protocols for the release of BOGIE and BACALL.

RULING: ACCEPTED AND INCORPORATED.

67. The comments provided by NMFS on the scientific research permit application and the urging of the hiring of Mary Lycan to draft protocols for the release of BOGIE and BACALL increased the tensions within SDS primarily among Richard O'Barry and Lloyd Good, III. Mr. O'Barry and Mr. Good viewed the comments received from NMFS as a signal that NMFS had no intention of issuing a permit to SDS. They believed that the hiring of Mary Lycan was an attempt to replace Mr. O'Barry in his role at SDS.

RULING: ACCEPTED AND INCORPORATED.

68. Beginning in the early Spring of 1995, Mr. O'Barry and Mr. Good began providing less information to parties not physically located at Sugarloaf Lodge, including HSUS and the off-site SDS board members.

RULING: ACCEPTED AND INCORPORATED.

69. The off-site SDS board members (Berman, Schoelkopf, and Spill) were supposed to be briefed each week on the progress at SDS. As time progressed, the off-site board members received less and less information from the on-site board members, Mr. O'Barry and Mr. Good.

RULING: ACCEPTED AND INCORPORATED.

70. The paucity of information provided by on-site board members, Mr. O'Barry and Mr. Good, prompted the off-site board members to send an independent veterinarian to SDS to examine the dolphins. The independent veterinarian, however, was denied the ability to physically examine the dolphins by Mr. Good.

RULING: ACCEPTED AND INCORPORATED.

71. As the Spring of 1995 progressed, the relationship between the on-site and off-site board members grew increasingly strained as the off-site board members were made aware of numerous problems occurring at SDS.

RULING: ACCEPTED AND INCORPORATED.

72. Tensions among the on-site and off-site board members reached critical mass in June of 1995, following Mr. Good's allowing of the gate to the SDS facility to be opened so that the dolphins could leave the facility at will and his firing of Mary Lycan for opposing Mr. Good's decision to open the gate.

RULING: ACCEPTED AND INCORPORATED.

73. As a result of Mr. Good's June 1995 actions, the off-site board members called an emergency meeting of the SDS Board of Directors on June 23, 1995. This board meeting concluded: a) O'Barry and Good openly defied NMFS by illegally and irresponsibly releasing the dolphins from SDS; b) such actions endangered the welfare of these dolphins, as they were not ready for release; c) such actions were inconsistent with the mission of SDS, and threatened to undermine the stated goal of precedent setting, scientifically documented release; d) management of SDS ranged from poor to dismal; and e) an emergency meeting was necessary to "assert Board authority over SDS officers and staff who are out of control."

RULING: ACCEPTED AND INCORPORATED.

74. Based upon the June 23, 1995, SDS Board of Directors meeting the SDS Board of Directors resolved to: a) transfer ownership and custody of BOGIE and BACALL to the Dolphin Alliance; b) transfer custody of MOLLY, JAKE, LUTHER, and BUCK to the Marine Mammal Conservancy (MMC), a Florida non-profit corporation in Key Largo, Florida; and c) terminate O'Barry from his position as Director of Readaptation and Release, effective immediately.

RULING: ACCEPTED AND INCORPORATED.

75. At the conclusion of the June 23, 1995, SDS Board of Directors meeting the off-site SDS Board members called for another board meeting to be held on July 3, 1995, for the purpose of removing Richard O'Barry and Lloyd Good, III, from the SDS Board of Directors.

RULING: ACCEPTED AND INCORPORATED.

76. On July 3, 1995, the off-site SDS Board of Directors voted to remove Richard O'Barry and Lloyd Good, III, as members of the SDS Board of Directors.

RULING: ACCEPTED AND INCORPORATED.

77. In response to the off-site board members actions at the June 23 and July 3, 1995, board meetings, Mr. O'Barry and Mr. Good filed a lawsuit in State court against the off-site board members challenging their ouster.

RULING: ACCEPTED AND INCORPORATED.

78. The State court action filed by Mr. O'Barry and Mr. Good against the off-site board members was settled in August 1995. Terms of the settlement included: a) the offsite SDS board members tendering their resignations as directors, with O'Barry and Good agreeing to indemnify them from any liability incurred by SDS; and b) BOGIE and BACALL being transferred to Dolphin Alliance for continuation of the Welcome Home Project. The settlement was silent as to the status of JAKE, BUCK, and LUTHER.

RULING: ACCEPTED AND INCORPORATED.

79. On July 10, 1995, Lloyd Good, III, wrote to NMFS requesting copies of all protocols for the release of captive bottlenose dolphins.

RULING: ACCEPTED AND INCORPORATED.

80. On August 2, 1995, Lloyd Good, III, wrote to NMFS stating that since NMFS had failed to respond to his earlier request: a) he assumed no such protocols existed; and b) he was requesting a "letter of exemption" authorizing SDS's release work.

RULING: ACCEPTED AND INCORPORATED.

81. NMFS viewed the July 10, and August 2, 1995, inquiry by Lloyd Good, III, as "disingenuous," because Lloyd Good, III, knew the purpose of the Welcome Home Project was to develop the protocols for release of dolphins back to the wild.

RULING: ACCEPTED AND INCORPORATED.

82. Following the July 10, and August 2, 1995, letters from Lloyd Good, III, to NMFS, NMFS provided SDS several letters explaining SDS's obligations under the MMPA. These letters reminded SDS that the dolphins were held at SDS pursuant to a public display permit, that the public display permit and the MMPA prohibited release without a scientific research permit, and provided legislative history indicating Congress' opinion that release could only occur pursuant to a scientific research permit issued under the authority of the MMPA.

RULING: ACCEPTED AND INCORPORATED.

83. NMFS repeatedly warned SDS that any release might result in a "taking," which would result in violation of the MMPA, unless authorized pursuant to a scientific research permit.

RULING: ACCEPTED AND INCORPORATED.

84. NMFS asked SDS for assurances that the facility would not attempt any further releases, until after it had received a scientific research permit.

RULING: ACCEPTED AND INCORPORATED.

85. As of August 1995, the newly constituted SDS Board of Directors was comprised of three directors: Lloyd Good, III, Richard O'Barry, and Kathleen Brooks.

RULING: ACCEPTED AND INCORPORATED.

86. On August 30, 1995, the SDS Board of Directors consisting of Lloyd Good, III, Richard O'Barry, and Kathleen Brooks, rejected O'Barry's request to release JAKE, LUTHER, and BUCK without a scientific research permit. The SDS Board voted to apply for a scientific research permit, a decision O'Barry stated he would honor.

RULING: ACCEPTED AND INCORPORATED.

87. By September 1995, HSUS had effectively withdrawn from the SDS project, believing that SDS was no longer interested in pursuing a scientific program.

RULING: ACCEPTED AND INCORPORATED.

88. Internal fighting continued among the new SDS Board of Directors and as of October 1995, Richard O'Barry had stopped living at the Sugarloaf Lodge. He had purportedly left the project because he no longer felt welcome at the facility.

RULING: ACCEPTED AND INCORPORATED.

89. As of December 1995, Lloyd Good, III, had fired all of his animal care staff because of disagreement over husbandry practices.

RULING: ACCEPTED AND INCORPORATED.

90. On January 28, 1996, Richard O'Barry and Kathleen Brooks convened a meeting of the SDS Board of Directors. At that meeting, the Board passed a resolution to transfer JAKE, LUTHER, and BUCK, to the Dolphin Project, effective immediately. Additionally, the Board resolved to: a) seek a permit allowing the transfer of the animals to a facility in the Mississippi Sound; and b) apply to NMFS for a permit to release the animals upon their arrival.

RULING: ACCEPTED AND INCORPORATED.

91. At the January 28, 1996, SDS Board meeting Lloyd Good, III, moved that SDS maintain ownership of the animals until actual transfer of the animals to the Mississippi Sound. The motion was rejected because "Mr. Good and his staff are not qualified to care for, nor do they have the manpower to manage multiple marine mammals."

RULING: ACCEPTED AND INCORPORATED.

92. The Dolphin Project notified NMFS of these January 28, 1996, SDS board meeting resolutions. However, NMFS questioned whether the transfer occurred as a matter of law because SDS held the public display permit, The Dolphin Project, Inc. did not hold a permit authorizing them to receive or possess marine mammals, and the dolphins continued to be housed at SDS.

RULING: ACCEPTED AND INCORPORATED.

93. As of April of 1996, Lloyd Good, III, was solely in control of the daily operations at SDS.

RULING: ACCEPTED AND INCORPORATED.

94. As of April of 1996, the dolphins (LUTHER, BUCK, JAKE, and MOLLY) spent much of their time in the lagoon immediately adjacent to the Sugarloaf Lodge and the Lodge's Tiki Bar, in the view of hotel and bar patrons.

RULING: ACCEPTED AND INCORPORATED.

95. As of April of 1996, hotel and bar patrons were able to have unsupervised interaction with LUTHER, BUCK, JAKE, and MOLLY. On one occasion a child was videotaped tossing a dead crab to the dolphins to eat.

RULING: ACCEPTED AND INCORPORATED.

96. As of April 1996, feeding of the dolphins was conducted at regularly scheduled times, three times each day. The dolphins were fed in the lagoon in front of the hotel and Tiki bar, in full view of hotel and bar patrons. The feeders would paddle to the middle of the lagoon in a kayak, which contained a large plastic cooler filled with dead fish. The dead fish was tossed over the side of the kayak, to the dolphins who were next to the kayak, with their heads out of the water and mouths open, in anticipation of being fed. In many instances, the dead fish was simply placed directly into the dolphin's mouth.

RULING: ACCEPTED AND INCORPORATED.

97. As of April 1996, LUTHER and BUCK were also allowed to swim outside of the facility in open waters around SDS.

RULING: ACCEPTED AND INCORPORATED.

98. Swimming in open waters outside of SDS placed the LUTHER and BUCK in contact with people not associated with SDS.

RULING: ACCEPTED AND INCORPORATED.

99. The open water area outside of SDS was immediately adjacent to a marina, which allowed the dolphins to encounter boaters using the marina.

RULING: ACCEPTED AND INCORPORATED.

100. On one occasion, a boater approached the dolphins and proceeded to jump into the water and swim with the dolphins.

RULING: ACCEPTED AND INCORPORATED.

101. The feeding activities as of April 1996, were in direct conflict with the protocols written by Mary Lycan and adopted by Richard O'Barry.

RULING: ACCEPTED AND INCORPORATED.

102. Mary Lycan developed and Richard O'Barry adopted detailed feeding protocols designed to ensure that the dolphins were able to independently forage for food upon release. These protocols provided a step-by-step process that gradually transitioned the dolphins from hand-fed fish to opportunistic foraging for live fish.

RULING: ACCEPTED AND INCORPORATED.

103. Many of Lloyd Good, III's, practices as of April 1996, were a continuation of methods that SDS had employed in the Spring of 1995.

RULING: ACCEPTED AND INCORPORATED.

104. In Spring of 1995, BUCK was typically fed dead fish from a kayak, which he would follow around with his head out of the water in anticipation of food. LUTHER and JAKE were fed at established times from an established feeding station in the lagoon. The dolphins would gather around this station, with their heads out of the water and mouths open, waiting for fish to be tossed to them.

RULING: ACCEPTED AND INCORPORATED.

105. In late April, 1996, NMFS again began to receive reports that Lloyd Good, III, was again allowing the SDS dolphins to swim in open waters outside of the facility.

RULING: ACCEPTED AND INCORPORATED.

106. On April 25, 1996, Richard O'Barry and Kathleen Brooks, in their capacity as SDS directors, wrote to NMFS pleading for assistance, stating that the dolphins were in "jeopardy", and that the dolphins were allowed to swim outside of the facility where they were "at the mercy of the local fishermen who occasionally give them live fish from their boats."

RULING: ACCEPTED AND INCORPORATED.

107. In a letter to Animal and Plant Health Inspection Service (APHIS) dated April 24, 1996, Richard O'Barry requested APHIS's assistance, stating "this is a real emergency," the dolphins were "living in the marina most of the time, dodging outboard motor boats." The letter went on to state that Good was "out of control" and that he had refused requests to return the dolphins to the facility.

RULING: ACCEPTED AND INCORPORATED.

108. On April 25, 1996, NMFS wrote to Lloyd Good, III, in response to the April 25, 1996 letter from O'Barry and Brooks. In this letter, NMFS: a) reminded Good that releasing the dolphins was a violation of the SDS public display permit and was only authorized pursuant to a scientific research permit; and b) demanded assurances that no further releases would occur, except pursuant to such a permit.

RULING: ACCEPTED AND INCORPORATED.

109. On April 26, 1996, Lloyd Good, III, responded to NMFS's April 25, 1996 letter, stating: "NMFS continues to claim that a permit is needed to free dolphins but will not say why, or how one can be obtained. Although I would love to have received a permit from your office, the need for the dolphins in my care who wish to be free - to be free - has to be my paramount and only concern. Our bureaucratic chess match has reached its ethical and humanitarian time limit."

RULING: ACCEPTED AND INCORPORATED.

110. Pleas for intervention also came from HSUS, which had once been part of the SDS program. HSUS's request was made with reluctance, given their involvement in helping place the dolphins at SDS.

RULING: ACCEPTED AND INCORPORATED.

111. In light of the concerns raised by O'Barry, Brooks, and HSUS, NMFS and APHIS made the decision to remove LUTHER, BUCK, and JAKE from the SDS facility.

RULING: ACCEPTED AND INCORPORATED.

112. The NMFS/APHIS decision to seize dolphins was based upon Section 1374(c)(2)(D) of the MMPA, which authorizes NMFS to seize any marine mammal that is publicly displayed by a facility which fails to possess an exhibitor's license issued under the Animal Welfare Act (AWA).

RULING: ACCEPTED AND INCORPORATED.

113. In an inter-agency effort, NMFS planned to seize LUTHER, BUCK, and JAKE immediately following the revocation of SDS's exhibitor's license, which APHIS planned to revoke for past AWA violations.

RULING: ACCEPTED AND INCORPORATED.

114. NMFS's plans to seize LUTHER, BUCK, and JAKE were leaked to SDS.

RULING: ACCEPTED AND INCORPORATED.

115. Approximately two weeks prior to the release of LUTHER and BUCK, and after learning of NMFS's plans to seize the dolphins, Richard O'Barry returned to SDS.

RULING: ACCEPTED AND INCORPORATED.

116. Following O'Barry's return to SDS, O'Barry and Good moved the dolphins to the secluded lagoon on the side of the Sugarloaf Lodge where O'Barry conducted his "readaptation show."

RULING: ACCEPTED AND INCORPORATED.

117. On Thursday morning, May 23, 1996, Good, O'Barry, and O'Barry's son, Lincoln O'Barry, loaded LUTHER and BUCK onto a small boat and proceeded out of the SDS facility toward open water. They were followed by a second boat that carried a film crew from a French film company, there to film the release.

RULING: ACCEPTED AND INCORPORATED.

118. No notification was provided to NMFS prior to the May 23, 1996, transport of the dolphins away from SDS.

RULING: ACCEPTED AND INCORPORATED.

119. The transport and release of LUTHER and BUCK was captured on videotape, which was later seized from the French film crew by NMFS. RULING: ACCEPTED AND INCORPORATED.

120. On the morning of May 23, 1996, the boats carrying the dolphins and the French film crew traveled to a location approximately nine nautical miles from SDS, and 6.5 nautical miles north of Key West, to an area near Mud Keys.

RULING: ACCEPTED AND INCORPORATED.

121. When the boats reached their destination, on May 23, 1996, both animals were rolled over the side of the boat and released - first LUTHER and then BUCK.

RULING: ACCEPTED AND INCORPORATED.

122. Several months prior to release, both released dolphins were marked for identification by way of freeze brands on their dorsal fin - LUTHER was branded with a "star" and BUCK was branded with a "heart."

RULING: ACCEPTED AND INCORPORATED.

123. Following the release, both boats remained on scene for approximately one hour, during this hour there were no confirmed sightings of LUTHER or BUCK.

RULING: ACCEPTED AND INCORPORATED.

124. Following the release, the two boats involved in the release returned to SDS.

RULING: ACCEPTED AND INCORPORATED.

125. The timing of the release of LUTHER and BUCK was driven by the desire to prevent the government from seizing the dolphins from the SDS facility.

RULING: ACCEPTED AND INCORPORATED.

126. On May 23, 1996, when NMFS officials learned that Good and O'Barry had left SDS with the dolphins, they immediately attempted to intercept the vessel in order to prevent the release. For several hours, NMFS agents, the United States Coast Guard (USCG), and the Florida Marine Patrol (FMP) canvassed the area by boat and helicopter in search of the vessel. The search was abandoned after agents were informed early in the afternoon that the dolphins had been released around 11:30 that morning.

RULING: ACCEPTED AND INCORPORATED.

127. On the afternoon of May 23, 1996, NMFS agents proceeded to the SDS facility to investigate the release. Upon their arrival, they encountered Lloyd Good, III, Richard O'Barry, and several members of the French film crew.

RULING: ACCEPTED AND INCORPORATED.

128. During the NMFS investigation of the release on May 23, 1996, Richard O'Barry immediately stepped in and stated that he had released "my two dolphins BUCK and LUTHER," and that Good had nothing to do with it. O'Barry cursed the NMFS agent, claimed that he had broken no laws, and viewed the agent's questioning as harassment.

RULING: ACCEPTED AND INCORPORATED.

129. On May 24, 1996, reports were received by NMFS and the Dolphin Research Center (DRC) that a "friendly dolphin" had been seen near the Blue Lagoon Hotel, in Key West, approximately 6.5 miles from the site LUTHER and BUCK were released.

RULING: ACCEPTED AND INCORPORATED.

130. In response to these unconfirmed reports of May 24, 1996, NMFS elected to send an Agency biologist to the area to determine whether this dolphin was from SDS and to assess its condition.

RULING: ACCEPTED AND INCORPORATED.

131. The first confirmed sighting of LUTHER occurred on Saturday, May 25, 1996. LUTHER was observed in the area of Garrison Bight near the Key West Yacht Club. At this sighting, LUTHER was identified by the "star" freeze brand and was observed for several hours approaching vessels entering and exiting the marina.

RULING: ACCEPTED AND INCORPORATED.

132. On May 25, 1996, LUTHER was observed approaching vessels with his head out of the water and his mouth open, in apparent search of food. People were seen feeding him bait fish from these vessels.

RULING: ACCEPTED AND INCORPORATED.

133. Early in the evening of May 25, 1996, LUTHER was observed in entry channel of Garrison Bight by personnel from DRC, the Marine Mammal Conservancy (MMC), and the NMFS biologist who now had arrived on-scene. The dolphin was observed approaching their boat. The dolphin also displayed a "white marking" on his right side below the dorsal fin.

RULING: ACCEPTED AND INCORPORATED.

134. As of May 25, 1996, no decision had been made to rescue LUTHER, instead, rescue personnel decided to further monitor the dolphin the following day.

RULING: ACCEPTED AND INCORPORATED.

135. On Sunday, May 26, 1996, LUTHER was observed by personnel from NMFS, DRC, and MMC, near Sunset Marina.

RULING: ACCEPTED AND INCORPORATED.

136. Sunset marina is approximately two miles from the Key West Yacht Club, and sits adjacent to the local trash dump on Stock Island.

RULING: ACCEPTED AND INCORPORATED.

137. Sunset marina is adjacent to a busy boating channel that allows vessel traffic to move between the Gulf of Mexico and the Atlantic Ocean, without having to sail around Key West.

RULING: ACCEPTED AND INCORPORATED.

138. At Sunset Marina on May 26, 1996, rescue personnel were able to more closely examine LUTHER. At this time, rescue personnel observed that LUTHER was visibly thin, and had sustained a series of deep gashes on his right side.

RULING: ACCEPTED AND INCORPORATED.

139. As a result of the examination of LUTHER on May 26, 1996, the NMFS biologist onscene decided that LUTHER was in distress and required medical attention.

RULING: ACCEPTED AND INCORPORATED.

140. Following a consultation in the late evening of May 26, 1996, NMFS decided to pursue some type of intervention the following day.

RULING: ACCEPTED AND INCORPORATED.

141. On Monday, May 27, 1996, LUTHER was again seen by rescue personnel at Sunset Marina. It was Memorial Day. There was heavy recreational boating traffic was in both the marina and in the channel adjacent to the marina. There were a large number of jet skiers on the water, adding to the overall vessel traffic. LUTHER was observed swimming in the marina, and across the channel leading into the marina, he was repeatedly approaching boats, with his head out of the water and mouth open, in an apparent attempt to obtain "handouts." Some boaters waved their arms upward, as if to simulate a classic command for trained dolphins. In response, LUTHER would respond on cue, leaping out of the water to the applause of boaters. LUTHER was also seen interacting with people who tried to swim with him.

RULING: ACCEPTED AND INCORPORATED.

142. As LUTHER was swimming in Sunset Marina on May 27, 1996, rescue personnel, enforcement personnel from NMFS, the U.S. Coast Guard, and the Florida Marine Patrol warned vessels to maintain slow speeds and to stay away from LUTHER so that rescue personnel could work with the animal.

RULING: ACCEPTED AND INCORPORATED.

143. By noon on May 27, 1996, a Navy trainer had arrived on-scene and examined LUTHER. He determined that the dolphin was scared, injured, and needed to be examined by a veterinarian.

RULING: ACCEPTED AND INCORPORATED.

144. Following the arrival of the Navy trainer, a decision was made to move LUTHER out of the Sunset Marina area to a pen at a Army Special Operations dive school on Fleming Key, approximately two miles away.

RULING: ACCEPTED AND INCORPORATED.

145. When the rescue team was ready to move LUTHER to the location at the Army Special Operations dive school, the Navy trainer placed a recall "pinger" into the water and LUTHER immediately approached the vessel from 200 yards away like a "torpedo."

RULING: ACCEPTED AND INCORPORATED.

146. Following LUTHER'S response to the pinger, rescue personnel lead him to the location at the Army Special Operations dive school, using a procedure known as a "boat follow."

RULING: ACCEPTED AND INCORPORATED.

147. As LUTHER and the rescue team neared the temporary pen at the Army Special Operations dive school, the vessel stopped while rescue workers completed final construction of the pen. For twenty minutes, the Navy trainer kept LUTHER engaged by running him through a number of commands that were taught to him while in Navy custody. These included: a) hand stationing for physical inspection; b) retrieving an orange bucket lid tossed from the vessel; c) vocalizing; d) bow jumping; and e) the "hula."

RULING: ACCEPTED AND INCORPORATED.

148. The "boat follow" and the other commands issued by the Navy trainer to LUTHER on May 27, 1996, are learned behaviors that wild dolphins will not perform on command.

RULING: ACCEPTED AND INCORPORATED.

149. On May 27, 1996, LUTHER could not be coaxed into the holding pen at the Army Special Operations dive school. He was not sighted again for another two days.

RULING: ACCEPTED AND INCORPORATED.

150. On Thursday May 30, 1996, one week after the release, LUTHER was spotted swimming in the "sub pits," at the Boca Chica Naval Air Station.

RULING: ACCEPTED AND INCORPORATED.

151. Responding immediately to the reported sighting at Boca Chica, rescue workers managed to place a gate across the entrance to the "sub pits," effectively securing LUTHER.

RULING: ACCEPTED AND INCORPORATED.

152. There were no confirmed sightings of BUCK immediately following his release on May 23, 1996.

RULING: ACCEPTED AND INCORPORATED.

153. Unconfirmed reports, suggested that BUCK may have ventured as far east as the middle Keys.

RULING: ACCEPTED AND INCORPORATED.

154. Approximately one week after the release, DRC received a call from a fishermen near Lignum vitae Key, nearly 80 miles east of Key West. The fisherman reported that a dolphin had: a) approached his vessel; b) placed his head on the pontoon and allowed the fisherman to scratch his head; and c) ate all of his bait.

RULING: ACCEPTED AND INCORPORATED.

155. Approximately one week after the release, a woman near Islamorada called DRC and reported a friendly dolphin with a "tattoo" on its dorsal fin and that she played with the dolphin in the water for nearly one hour.

RULING: ACCEPTED AND INCORPORATED.

156. On Tuesday, June 4, 1996, Martha Smith and her husband were boating through Vaca Cut when they encountered a dolphin with a tattoo on its dorsal fin "hanging out" in the channel. The dolphin then came right up to their boat, allowing them to pet it. The dolphin then rolled over on its back, allowing them to pet its belly. Remembering an article on the release of the SDS dolphins, Ms. Smith contacted DRC.

RULING: ACCEPTED AND INCORPORATED.

157. Vaca Cut is a busy boating channel near Marathon that is used by boaters moving between the Atlantic and the Gulf side of the Florida Keys.

RULING: ACCEPTED AND INCORPORATED.

158. Upon receipt of the sighting by Martha Smith, DRC personnel responded immediately, boating to Vaca Cut. Upon reaching Vaca Cut, DRC personnel submerged an acoustic pinger and BUCK responded to the pinger within seconds.

RULING: ACCEPTED AND INCORPORATED.

159. Following a positive identification of BUCK at Vaca Cut, DRC used the "boat follow" technique witnessed earlier with LUTHER, to get BUCK to follow their vessel back to the DRC facility, where he was secured.

RULING: ACCEPTED AND INCORPORATED.

160. Throughout the rescue efforts, neither Richard O'Barry or Lloyd Good, III, were observed on-scene by rescue personnel.

RULING: ACCEPTED AND INCORPORATED.

161. Richard O'Barry never tracked the dolphins and had left the country within one week of the release.

RULING: ACCEPTED AND INCORPORATED.

162. O'Barry was angry with ongoing rescue efforts, and did not want the dolphins recaptured. He believed that the government, through its efforts, was attempting to sabotage the release that he characterized as legal, ethical, and responsible.

RULING: ACCEPTED AND INCORPORATED.

163. Following their rescue of LUTHER and BUCK, both animals were immediately examined by Navy marine mammal veterinarian, Dr. William Van Bonn.

RULING: ACCEPTED AND INCORPORATED.

164. Dr. Van Bonn's first examination of LUTHER occurred on May 31, 1996. At that time, Dr. Van Bonn noted several significant findings: LUTHER appeared underweight suggesting that he was burning more calories than he was taking in, which suggested that he was not eating; LUTHER had sustained three lacerations on his right side below the dorsal fin, possibly caused by a propeller. Two of these were first degree lacerations (just into the epidermis), while the third was a second degree laceration (into the blubber). None of these lacerations were consistent with "rake marks"; LUTHER's perioccular tissues were darkened - a condition that is consistent with either dehydration or sleep deprivation; and LUTHER had a "macule" on the underside of his tail.

RULING: ACCEPTED AND INCORPORATED.

165. Following his May 31, 1996, examination of LUTHER, Dr. Van Bonn assessed LUTHER's overall condition as "fair," stating the dolphin was on a "poor plane of nutrition" and was dehydrated, which is consistent with a poor plane of nutrition. In his view, the animal's condition would have deteriorated without veterinary intervention.

RULING: ACCEPTED AND INCORPORATED.

166. Dr. Van Bonn's first comprehensive examination of BUCK occurred on June 5, 1996, the day following his rescue. During that examination, Dr. Van Bonn noted the following findings of significance: BUCK was significantly underweight; BUCK had sustained several lacerations along the left side of his body. One of these was a second degree laceration. None of these lacerations were consistent with "rake marks"; BUCK had sustained a puncture would on his right side below the dorsal fin.

RULING: ACCEPTED AND INCORPORATED.

167. Following his June 5, 1996, Dr. Van Bonn assessed BUCK's overall condition as "poor," stating that the dolphin was significantly underweight, on a poor plane of nutrition, and dehydrated. In his view, BUCK was much more underweight than LUTHER, and attributed this to the fact that BUCK was in the wild for a longer period of time. Given the dolphin's condition, veterinary intervention was necessary, and his prognosis would have been guarded without it.

RULING: ACCEPTED AND INCORPORATED.

168. Both LUTHER and BUCK were also examined by Dr. Greg Bossart, a veterinarian with the University of Miami, on June 12, 1996, at the request of NMFS.

RULING: ACCEPTED AND INCORPORATED.

169. Dr. Bossart noted the following findings of significance following his June 12, 1996, examination of LUTHER: LUTHER sustained several lacerations that were consistent with propeller injuries seen on manatees. These wounds were not "rake marks" and were not something typically seen in wild dolphins; LUTHER's weight was within normal limits, however, dolphins can gain or lose significant amounts of weight within a two week period of time.

RULING: ACCEPTED AND INCORPORATED.

170. Dr. Bossart noted the following findings of significance following his June 12, 1996, examination of BUCK: BUCK sustained several similar, but more extensive lacerations than LUTHER'S, also consistent with propeller wounds; BUCK weighed 309 pounds, which is approximately 50-100 pounds underweight for a dolphin his size; BUCK had a palpable condition consistent with marked "serous fat atrophy," a potentially life-threatening situation typically seen in "terminally-ill, stranded marine mammals," that typically occurs when an animal is in an advanced state of nutritional compromise; BUCK was not healthy and not consistent with healthy dolphins seen in the wild; BUCK's prognosis was "guarded," meaning he could die without proper care.

RULING: ACCEPTED AND INCORPORATED.

171. Following the release of LUTHER and BUCK, Federal officials moved quickly to seize JAKE, the remaining Navy dolphin at the SDS facility.

RULING: ACCEPTED AND INCORPORATED.

172. Under the MMPA, if the Secretary of Commerce, with the concurrence of the Secretary of Agriculture, determines that a person is holding marine mammals for public display without an exhibitors license issued under the AWA, the Secretary may seize all marine mammals unlawfully held.

RULING: ACCEPTED AND INCORPORATED.

173. On May 30, 1996, the Secretary of Agriculture suspended the AWA Exhibitor's License issued to SDS for multiple violations of the AWA.

RULING: ACCEPTED AND INCORPORATED.

174. With the suspension of the AWA Exhibitor's License, SDS was no longer authorized to possess dolphins for public display, and its continued possession of JAKE was a violation of the MMPA.

RULING: ACCEPTED IN PART; REJECTED IN PART. SEE OPINION INFRA

175. Following the suspension of the AWA Exhibitor's License, NMFS obtained a seizure warrant from a United States Magistrate, authorizing the seizure of JAKE.

RULING: ACCEPTED AND INCORPORATED.

176. The warrant authorizing the seizure of JAKE was issued upon submission of an extensive application which chronicled the many AWA violations at SDS, together with the recent release of LUTHER and BUCK.

RULING: ACCEPTED AND INCORPORATED.

177. JAKE was seized by NMFS law enforcement personnel on June 7, 1996, under the authority of the seizure warrant issued by the United States District Court for the Southern District of Florida on June 6, 1996.

RULING: ACCEPTED AND INCORPORATED.

B. AGENCY'S PROPOSED CONCLUSIONS OF LAW

1. Dolphins are marine mammals and are federally protected under the provisions of the Marine Mammal Protection Act, 16 U.S.C. 1361 et seq. (MMPA)

RULING: ACCEPTED AND INCORPORATED.

2. The MMPA imposes a general moratorium on the "taking" of marine mammals, and applies to all marine mammals "taken" after enactment of the statute. 16 U.S.C. 1371(a) and 1372(e).

RULING: ACCEPTED AND INCORPORATED.

3. The term "take" is defined by statute, and means to "harass, hunt, capture, or kill" a marine mammal, or to attempt any of these same activities. 16 U.S.C. 1362(13).

RULING: ACCEPTED AND INCORPORATED.

4. Under the MMPA, "takings" are allowed if they occur pursuant to a permit issued by the Secretary of Commerce. 16 U.S.C. 1371(a)(1).

RULING: ACCEPTED AND INCORPORATED.

5. Under the MMPA, a permit may be issued for "takings" that occur pursuant to public display, scientific research, or enhancing the survival or recovery of a species. 16 U.S.C. 1371(a)(1).

RULING: ACCEPTED AND INCORPORATED.

6. Permits authorizing "takings" under the authority of the MMPA are issued by the National Marine Fisheries Service (NMFS), a subagency of the National Oceanic and Atmospheric Administration (NOAA).

RULING: ACCEPTED AND INCORPORATED.

7. Subsection 1374(c)(2)(B) of the MMPA, lists all permissible activities that may be undertaken relative to marine mammals held for public display.

RULING: ACCEPTED AND INCORPORATED.

8. Subsection 1374(c)(2)(B)(ii) of the MMPA, addresses activities associated with the disposition of an animal that is held by a permit holder.

RULING: ACCEPTED AND INCORPORATED.

9. Under subsection 1374(c)(2)(B)(ii) of the MMPA, a permit holder may, without need of an additional permit, transfer possession of a marine mammal to another person for three recognized purposes - public display, scientific research, or enhancement.

RULING: ACCEPTED AND INCORPORATED.

10. Releasing an animal back into the wild is not a transfer to "another person."

RULING: ACCEPTED AND INCORPORATED.

11. A marine mammal that is held under a public display permit may only be released pursuant to an "additional permit."

RULING: ACCEPTED AND INCORPORATED.

12. The Respondent, Richard O' Barry, is a "person" within the definition of the MMPA. 16 U.S.C. 1362(10).

RULING: ACCEPTED AND INCORPORATED.

13. The Respondent, The Dolphin Project, Inc., is a "person" within the definition of the MMPA. 16 U.S.C. 1362(10).

RULING: ACCEPTED AND INCORPORATED.

14. The Respondent, Lloyd Good, III, is a "person" within the definition of the MMPA. 16 U.S.C. 1362(10).

RULING: ACCEPTED AND INCORPORATED.

15. The Respondent, Sugarloaf Dolphin Sanctuary, Inc., is a "person" within the definition of the MMPA. 16 U.S.C. 1362(10).

RULING: ACCEPTED AND INCORPORATED.

16. The Respondent's, Richard O'Barry, action of transporting the dolphin known as LUTHER on May 23, 1996, was not for the purpose of public display, scientific research, or enhancing the survival of a species or stock, and was therefore a violation of the MMPA. 16 U.S.C. 1372(a)(4)(B).

RULING: ACCEPTED AND INCORPORATED.

17. The Respondent's, The Dolphin Project, Inc., action of transporting the dolphin known as BUCK on May 23, 1996, was not for the purpose of public display, scientific research, or enhancing the survival of a species or stock, and was therefore a violation of the MMPA. 16 U.S.C. 1372(a)(4)(B).

RULING: ACCEPTED AND INCORPORATED.

18. The Respondent's, Lloyd Good, III, action of transporting the dolphin known as BUCK on May 23, 1996, was not for the purpose of public display, scientific research, or enhancing the survival of a species or stock, and was therefore a violation of the MMPA. 16 U.S.C. 1372(a)(4)(B).

RULING: ACCEPTED AND INCORPORATED.

19. The Respondent's, Sugarloaf Dolphin Sanctuary, Inc., action of transporting the dolphin known as BUCK on May 23, 1996, was not for the purpose of public display, scientific research, or enhancing the survival of a species or stock, and was therefore a violation of the MMPA. 16 U.S.C. 1372(a)(4)(B).

RULING: ACCEPTED AND INCORPORATED.

20. The Respondent, Sugarloaf Dolphin Sanctuary, Inc., did fail to notify the Secretary of Commerce of the intended transport of the dolphin known as LUTHER 15 days prior to the transport in violation of the MMPA. 16 U.S.C. 1374(c)(2)(E).

RULING: ACCEPTED AND INCORPORATED.

21. The Respondent, The Dolphin Project, Inc., did fail to notify the Secretary of Commerce of the intended transport of the dolphin known as LUTHER 15 days prior to the transport in violation of the MMPA. 16 U.S.C. 1374(c)(2)(E).

RULING: REJECTED.

22. The Respondent, Sugarloaf Dolphin Sanctuary, Inc., did fail to notify the Secretary of Commerce of the intended transport of the dolphin known as BUCK 15 days prior to the transport in violation of the MMPA. 16 U.S.C. 1374(c)(2)(E).

RULING: ACCEPTED AND INCORPORATED.

23. The Respondent, The Dolphin Project, Inc., did fail to notify the Secretary of Commerce of the intended transport of the dolphin known as BUCK 15 days prior to the transport in violation of the MMPA. 16 U.S.C. 1374(c)(2)(E).

RULING: REJECTED.

24. The Respondent's, Richard O'Barry, action of releasing the dolphin known as LUTHER into the wild on May 23, 1996, did result in a "take" in waters under the jurisdiction of the United States in violation of the MMPA. 16 U.S.C. 1372(a)(2)(A).

RULING: ACCEPTED AND INCORPORATED.

25. The Respondent's, The Dolphin Project, Inc., action of releasing the dolphin known as LUTHER into the wild on May 23, 1996, did result in a "take" in waters under the jurisdiction of the United States in violation of the MMPA. 16 U.S.C. 1372(a)(2)(A).

RULING: ACCEPTED AND INCORPORATED.

26. The Respondent's, Lloyd Good, III, action of releasing the dolphin known as LUTHER into the wild on May 23, 1996, did result in a "take" in waters under the jurisdiction of the United States in violation of the MMPA. 16 U.S.C. 1372(a)(2)(A).

RULING: ACCEPTED AND INCORPORATED.

27. The Respondent's, Sugarloaf Dolphin Sanctuary, Inc., action of releasing the dolphin known as LUTHER into the wild on May 23, 1996, did result in a "take" in waters under the jurisdiction of the United States in violation of the MMPA. 16 U.S.C. 1372(a)(2)(A).

RULING: ACCEPTED AND INCORPORATED.

28. The Respondent's, Richard O'Barry, action of releasing the dolphin known as BUCK into the wild on May 23, 1996, did result in a "take" in waters under the jurisdiction of the United States in violation of the MMPA. 16 U.S.C. 1372(a)(2)(A).

RULING: ACCEPTED AND INCORPORATED.

29. The Respondent's, The Dolphin Project, Inc., action of releasing the dolphin known as BUCK into the wild on May 23, 1996, did result in a "take" in waters under the jurisdiction of the United States in violation of the MMPA. 16 U.S.C. 1372(a)(2)(A).

RULING: ACCEPTED AND INCORPORATED.

30. The Respondent's, Lloyd Good, III, action of releasing the dolphin known as BUCK into the wild on May 23, 1996, did result in a "take" in waters under the jurisdiction of the United States in violation of the MMPA. 16 U.S.C. 1372(a)(2)(A).

RULING: ACCEPTED AND INCORPORATED.

31. The Respondent's, Sugarloaf Dolphin Sanctuary, Inc., action of releasing the dolphin known as BUCK into the wild on May 23, 1996, did result in a "take" in waters under the jurisdiction of the United States in violation of the MMPA. 16 U.S.C. 1372(a)(2)(A).

RULING: ACCEPTED AND INCORPORATED.

32. The Respondent's, Sugarloaf Dolphin Project, Inc., possession of the dolphin known as JAKE following the May 30, 1996, suspension of the Animal Welfare Act Exhibitor's License, issued by the Animal and Plant Health Inspection Service, was in violation of the MMPA. 16 U.S.C. 1374(c)(2)(A)(ii).

RULING: REJECTED.

33. The Agency's seizure of the dolphin known as JAKE on June 7, 1996, was conducted pursuant to a valid seizure warrant issued on June 6, 1996, by the Honorable Barry L. Garber, United States Magistrate Judge, United States District Court for the Southern District of Florida.

RULING: ACCEPTED AND INCORPORATED.

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