U.S. Department of Commerce, Office of Administrative Law Judge
In the Matters of: Kyle C. Mueller, et al
1991 WL 288705 (N.O.A.A.)
The question in this case was whether respondents, members of a marine mammal conservation group, violated the MMPA by interfering with the authorized capture of six dolphins. As result of this case, which was a civil penalty proceeding, only one of the respondents was found guilty of taking under the MMPA. The court found that the respondent's actions, although taken with noble intentions, endangered the lives of the dolphins, was improper, and dangerous. He was assessed a fine in the amount of $2,000.
Hugh J. Dolan, Administrative Law Judge
delivered the opinion of the court.
Opinion of the Court:
1. Marine Mammal Protection Act of 1972, 16 U.S.C. § 1361, et seq.
Respondent Wursthorne found liable for unlawfully taking a marine mammal in waters or on land under the jurisdiction of the United States in violation of the Marine Mammal Protection Act, and the regulations promulgated thereunder, 50 C.F.R. § 216.11(b). The other two Respondents found not liable.
2. Marine Mammal Protection Act--Permit regulations
When a dolphin capture team from Gulf World, Inc. (Gulf) noticed that only a female and her calf remained in the capture net, it appears that concern for their safety and compliance with Section C(2)(G) mandated their immediate release. The permit holders' insistence upon measuring the two dolphins before release appears to have been done under their interpretation of the permit regulations, which though possible, is not the best interpretation. It is not clear that Gulf was entitled to go as far as examining the animals' physical characteristics prior to releasing them. The more reasonable interpretation of Section C(2)(g) is that Gulf should have ceased its operations immediately in the smaller net.
3. Marine Mammal Protection Act--Prohibitions--Taking
The act of interference [pulling down the capture net in an attempt to free a baby dolphin, the result of which was to trap the baby dolphin in the net] that endangered the lives of the species sought to be protected, which was committed by Respondent Wursthorne, was improper, dangerous and constitutes a taking.
4. Marine Mammal Protection Act--Prohibitions
This disposition is confined to the peculiar circumstances of these events. In particular, had Gulf ended up with a group of dolphins in the inner net as authorized by the permit rather than capturing only a mother and calf, which the permittee was not allowed to take, the conduct of all Respondents would have resulted in substantial fines.
This is a civil penalty proceeding initiated under the Marine Mammal Protection Act, as amended 16 U.S.C. § 1361, et seq., and the regulations promulgated thereunder, 50 C.F.R. § 216.11(b). In a Notice of Violation and Assessment (NOVA) dated January 5, 1990, Respondents Kyle C. Mueller, Edward R. Wursthorne, and Benjamin L. White were charged with unlawfully taking a marine mammal in waters or on land under the jurisdiction of the United States, in violation of 16 U.S.C. § 1372(2)(a) of the Act and 50 C.F.R. § 216.11(b) on August 9, 1989. The National Oceanic and Atmospheric Administration (the Agency) has proposed the assessment of a civil penalty, in the amount of $2,000, against the three Respondents jointly and severally.
Respondents Mueller, Wursthorne, and White each separately requested a hearing. The hearing was held in Shalimar, Florida on May 15, 1990. Respondent Wursthorne did not appear, but did submit two statements for the record; the first was received in the Office of the Administrative Law Judge on May 14, 1990, and the second on May 15, 1990. Respondents Mueller and White were represented by Counsel, whereas Respondent Wursthorne proceeded pro se.
On August 9, 1989, a dolphin capture team from Gulf World, Inc. (Gulf), located in Panama City Beach, Florida, departed from Port St. Joe, Florida, for a dolphin capture expedition. Gulf possessed a permit, issued by the National Marine Fisheries Service (NMFS) to capture six (6) Atlantic bottlenose dolphins (Tursiops truncatus), each not less than 6'6" in length. (Agency Ex. 13, Section A(1)). The permit stated that the capture of these dolphins would involve the temporary retention of other dolphins.
The capture of Atlantic bottlenose dolphins for permanent retention authorized by this Permit will involve the chase and encirclement of other animals of this species which will be temporarily retained and subsequently released. In this regard the Collector shall submit a post-collection report indicating the numbers and, to the extent possible, ages and sexes of the animals chased, encircled, held and released in the course of collecting the authorized animals.
(Agency Ex. 13, Section B(3)).
The permit further prohibited Gulf from taking a pregnant dolphin, lactating female, or unweaned young dolphin.
The Holder shall neither take nor import any mammal which is pregnant, a lactating female, or is an unweaned young mammal, unless such taking or importing is specifically authorized in Section B of this Permit.
(Agency Ex. 13, Section C(2)(g)).
Pursuant to its permit, Gulf engaged in collection activity on August 8, 9, and 10, 1989. The incident involving the charges against Respondents occurred on August 9 during the setting of an encirclement net around an unconfirmed number of dolphins. Gulf's capture technique employed on August 9 involved the initial baiting of an area to attract a pod of dolphins, followed by the setting of a large, outer net anchored at both ends on a beach and weighted on the bottom. The procedure was repeated with a smaller, inner net. Finally, the inner net was hauled by hand to shore, thereby bringing the dolphins into shallow water along the beach. (Tr. 47, 48, 70).
Gulf team members, Raffield and Miller, who were present during the setting of the larger net, testified that the number of dolphins estimated to be in the pod was 8-12 (Tr. 51) and 8-14 (Tr. 102), respectively. They believed that some dolphins had escaped before the larger net was secured. Gulf members Raffield, Ford, and Miller estimated that there were 4-5 (Tr. 52), 4-6 (Tr. 75), and 4-8 (Tr. 103), dolphins respectively while the smaller net was circling. Respondent Wursthorne, who was not present at the hearing, stated in his submission for the record that other dolphins were outside the net. It remains unclear as to exactly when Gulf realized that the only dolphins in the net were a mother and calf; however, the record shows that both Respondents and Gulf could discern the number and size of dolphins remaining in the smaller net as it was being pulled in. (Tr. Miller 104); (Tr. Raffield 42); (Tr. Ford 75); (Tr. White 138); (Tr. Mueller 172). Respondents did not enter the scene until Gulf had set the smaller net and had started to pull it in (Tr. 138).
Respondents were identified as being affiliated with Sea Shepherd, a marine mammal conservation group. In this capacity, Respondent White had learned of Gulf's collection activities and had informed Respondents Wursthorne and Mueller of his findings. Together with other members of their group, some of whom photographed the event with a video camera from the beach, the Respondents set about following Gulf. During the capture process, the Respondents approached the capture location in a boat. The boat crossed the larger net, and the Respondents descended into the water (Tr. 139, 172).
When the smaller net was close to the shoreline, Respondents approached the net (Tr. 53). Respondent White spoke with Gulf team member Brad Howard Miller about the capture process (Tr. 104) after he and the two other Respondents entered the net (Tr. 106). Neither his conduct nor that of Mueller appears to have been agitating or disruptive, though it is clear that he requested immediate release of the mother and calf. From the statements and photography it appears that Respondent Wursthorne was some distance away across, but within the net. Apparently some of the porpoises [FN1] from the pod were outside the net near him. Their noise and activity appear to have caused the calf to leave its mother and bolt toward them.
According to his written submission, Respondent Wursthorne, apparently in response to the calf's movement toward the other dolphins, pushed down on the section of the inner net where he was standing (Tr. 77, 107). However, instead of escaping, the young dolphin was trapped under water by the net. Byron Keith Ford restrained the female when he observed that the calf was trapped (Tr. 83). Gulf member Ron Hardy dove under the water and released the calf (Tr. 108). Following this incident, Gulf measured and sexed the animals and then released them (Tr. 80, 113, 150, 178).
As noted, Respondent Wursthorne did not appear at hearing, but made a submission for the record in which he acknowledged that he pushed down the net, and that he saw other dolphins outside the net.
Respondents Mueller and White argue that Gulf, per the conditions of its dolphin capture permit, was required to release the dolphins immediately upon discovering that only a mother and calf remained in the net. Their conclusion is that Gulf committed an improper taking of the dolphins, within the meaning of the Act, by retaining the dolphins long enough to sex and measure them. Gulf contends that it was entitled to measure and sex the animals before their release.
These seemingly inconsistent positions are the product of unclear language in the permit regulations. Section B(3) of the permit allows the encirclement of dolphins other than those meeting the conditions for ultimate capture, and requires a post capture report of these incidental animals to the extent possible respecting numbers, ages, and sexes. The taking of lactating females and unweaned young is prohibited under Section C(2)(g).
Here when Gulf determined that only a female and her calf remained in the capture net, it appears that concern for their safety and compliance with Section C(2)(g) should have mandated their immediate release. Respondent White was correct in his request that such action be taken (Tr. 142). The permit holders' insistence upon measuring the two dolphins before release appears to have been done under their interpretation of the permit regulations, which though possible, is not the best interpretation.
Respondents Mueller and White invoke the defense of necessity to justify their activities on August 9. They argue that it was necessary for them to inject their presence in order to prevent a taking of the Dolphins by Gulf. Respondent White testified that he believed that Gulf would have absconded with the dolphins had Respondents not been present (Tr. 143-44).
I do not agree with his concern and believe that with the presence of outsiders the release of the mother and calf was absolutely assured. It is at least unlikely that Gulf would have proceeded to remove the dolphins from their environment in clear violation of the permit. It is not clear that Gulf was entitled to go as far as examining the animals' physical characteristics prior to releasing them. The more reasonable interpretation of Section C(2)(g) is that Gulf should have ceased its operations immediately upon the realization that only a mother and calf were encircled in the smaller net. The question remains whether Respondents Mueller, White, or Wursthorne violated the Act.
The record reflects that Respondents Mueller and White entered the net; however, it is not shown that they did more than stand inside the net or that they interfered with the operation. Respondent White testified that:
And the main thrust of that was to make sure that we were calm and we did not exacerbate the situation as much as we could avoid it and to just physically stand ... nonviolently inside the net and the only thing I did was to cross my arms so I was obviously passive and non-violent (Tr. 144).
Respondent Mueller testified that he intended that there be no confrontation between himself and any member of the capture team and that he had stood inside the net (Tr. 176).
On the other hand, Mr. Wursthorne admits in one of his two statements for the record that he acted to interfere with Gulf's activity.
I freely and gladly attest to the fact that I entered the inner net and pushed down the dolphin hunters net that had imprisoned the dolphins and was separating them from their family, which was anxiously patrolling outside the net in a vain effort to be reunited with their family.
(Respondent's Wursthorne's submission received on May 15, 1990 in the Office of the Administrative Law Judge)
Mr. Wursthorne's admission is supported by the testimony of agency witnesses Ford and Miller (Tr. 77, 108).
As a result of Mr. Wursthorne's action, the young dolphin was trapped in the net. It was thereafter rescued by Mr. Hardy, a member of the Gulf capture team (Tr. 108).
It appears from the record that the behavior of all the participants, including members of the Sea Shepherd group and Gulf, was inappropriate. A video tape of the event captures both the confusion generated in the aftermath of the ill-fated attempt to release the dolphin by Respondent Wursthorne and the vulgar gestures and ill temper attributed to Gulf team members. It is unfortunate that these licensed capture activities are not carried out in the presence of an official observer, as is done in the Tuna industry.
Nonetheless, bad manners as shown by Gulf team members and passive objection as demonstrated by Respondents White and Mueller will not, standing alone, be penalized by this Tribunal. The mere stepping into the net by Respondents White and Mueller did not constitute a taking under these facts and circumstances.
On the other hand, the act of interference that endangered the lives of the species sought to be protected, which was committed by Respondent Wursthorne, was improper, dangerous, and does constitute a taking. The results of Respondent Wursthorne's actions, although undertaken with noble intentions, demonstrates how hazardous interference by a well-meaning volunteer can be. The record shows that Respondent Wursthorne acted inconsistently with the agreement among Sea Shepherd members to remain passive. His actions appear to have been a kneejerk reaction to the opportunity presented by the calf's position near the net, combined with an emotional response to what he described as other dolphins calling to the calf from outside the net.
I would emphasize that this disposition is confined to the peculiar circumstances of these events. In particular, had Gulf ended up with a group of dolphins in the inner net as authorized by the permit rather than capturing only a mother and calf, which the permittee was not allowed to take, the conduct of all Respondents would have resulted in substantial fines.
1. Respondents Kyle C. Mueller, Edward R. Wursthorne and Bejamin L. White are persons within the meaning of the Marine Mammal Protection Act, 16 U.S.C. § 1362(9).
2. On August 9, 1989, Respondents' activities occurred in a place under the jurisdiction of the United States within the meaning of the Marine Mammal Protection Act, 16 U.S.C. § 1372(a)(2)(B).
3. Respondents did not possess a permit to take Atlantic Bottlenose Dolphins (Tursiops truncatus) issued by the National Marine Fisheries Service (NMFS) pursuant to the Marine Mammal Protection Act.
4. On August 9, Respondents intentionally entered the net which had encircled two dolphins during a legally permitted collection activity.
5. Upon discoverying that only a mother and calf remained in their net, Gulf failed to immediately release the mother and calf, which were prohibited categories for temporary or permanent taking except as incidental catch to the taking of other dolphins.
5. Respondents Mueller and Whites' actions in entering the net and remaining passively within constitute an attempt to prevent what they reasonably believed to be a violation of Gulf's permitted activity. As such, their actions did not constitute a taking because the retention of the mother and calf, after it was ascertained that they alone had been encircled, was not authorized. In addition, their conduct did not amount to a taking insofar as they were merely observers.
6. Respondent Wursthorne deliberately lowered the net in an effort to release a dolphin. His action caused the entrapment of the animal below water in the net and caused Mr. Hardy of Gulf to dive under the net in the water to release the animal. This action endangered the dolphins.
7. Respondent Wursthorne's activity constituted a taking in violation of the Act.
8. The civil penalty of $2,000 is reasonable.
9. The record does not show that Respondent Wursthorne is unable to pay the assessed penalty.
10. The record does not show any prior violation by Respondent Wursthorne of the Marine Mammal Protection Act, 16 U.S.C. § 1361, et seq.
Based upon the evidence of record, I conclude that the conduct of Respondents White and Mueller did not constitute a taking of marine mammals in violation of the Marine Mammal Protection Act, 16 U.S.C. § 1361. I also conclude that Edward R. Wursthorne did effect a prohibited taking by his actions.
IT IS ORDERED that a civil penalty of $2,000 is imposed against Respondent Edward R. Wursthorne.
A failure to pay the civil penalty within 30 days from the date on which this decision becomes the final Agency action will result in the total penalty then becoming due and payable, and interest being charged at the rate specified by the United States 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 90 days past due, the Respondents may also be assessed an additional penalty charge not to exceed 6 percent per annum.
Hugh J. Dolan
Administrative Law Judge
Any petition for review of this Decision must be filed within 30 days of this date with the Administrator of the National Oceanic and Atmospheric Administration as subject to the requirements of 15 C.F.R. § 904.273, 52 Fed.Reg. 10334 (1987).
FN1 The terms porpoise and dolphin are used interchangeably here.
U.S. Department of Commerce
National Oceanic and Atmospheric Administration