This case involves violations of the MMPA by taking, in the form of harassment by feeding or attempting to feed wild dolphins. The respondents, a captain of a vessel used in a dolphin-feeding encounter, and the sole shareholder of a boat renal company, were both found guilty and assessed civil penalties in the amount of $4500. Though the shareholder was not on the vessel when it committed the feeding violations, he was found guilty of violating the MMPA, by providing a platform from which feeding is conducted or supported.
This is a civil penalty proceeding initiated pursuant to the legal authority contained under the Marine Mammal Protection Act of 1972 ("MMPA"), as amended, 16 U.S.C. § 1372(a)(2) and the regulations promulgated thereunder in 50 CFR Part 216.11. It was conducted in accordance with the procedural requirements found in 15 C.F.R. Part 904 et seq.
On July 1, 1998, the National Oceanic and Atmospheric Administration ("the Agency" or "NOAA") charged Thomas Rainelli ("Rainelli"), Chanti Hance ("Hance"), Hathaway's Boat Rentals, Inc. ("Hathaway's"), and Tropical Parasail, Inc. ("Tropical") with a Notice of Violation and Assessment of Administrative Penalty ("NOVA"). The NOVA alleges that these entities and individuals committed five violations of the MMPA and 50 C.F.R. § 216.11 on or about June 17, 1998, by unlawfully taking a marine mammal in United States waters by harassing or attempting to harass by feeding or attempting to feed a marine mammal of the order Cetacea (a porpoise).
The Agency entered into settlement agreements with Hance on April 7, 1999 for $ 500.00 and Alisa Forrest, president of Tropical on July 11, 1999. See, Agency Exhibits 9, 10. Consequently, Rainelli and Hathaway's are the sole remaining named Respondents.
NOAA initially proposed a $ 5,000 civil penalty against the Respondents jointly and severally, $ 1,000 for each violation. The proposed penalty was subsequently reduced to $ 4,500 ($ 900 for each violation) after the Agency's settlement with Hance. A hearing before the undersigned Administrative Law Judge commenced at 10:30 a.m. on July 15, 1999 in Pensacola, Florida. The Respondents appeared pro se. A record of the hearing was made by a qualified reporter. A list of the witnesses who testified at the hearing and the exhibits admitted into evidence are set forth in Appendix A and B.
Based on the evidence presented at the hearing and stipulations made by the parties, the undersigned issued an oral ruling at the conclusion of the hearingthat NOAA had proved the allegations contained in the NOVA by a preponderance of the evidence. The undersigned Administrative Law Judge assessed a $ 4,500 civil penalty against the Respondents and ordered the Respondents to post a federal "No Dolphin Feeding" sign and poster on the grounds and counter of Hathaway's Boat Rentals, Inc.
The bases for this decision are set forth in the following sections.
LAW AND REGULATIONS
The MMPA, at 16 U.S.C. § 1372(a)(2), provides that it is unlawful:
. . . except as provided for by an international treaty, convention, or agreement to which the United States is a party and which was entered intobefore the effective date of this title or by any statute implementing any suchtreaty, 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; or
(B) for any person to use any port, harbor, or other place under the jurisdiction of the United States to take or import marine mammals or marine mammal products . . .
The regulations issued under the MMPA at 50 C.F.R. § 216.11 state that it is unlawful for:
(a) Any person, vessel,or conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas, or
(b) Any person, vessel or conveyance to take any marine mammal in waters or on lands under the jurisdiction of the United States, or
(c) Any person subject to the jurisdiction of the United States to take any marine mammal during the moratorium.
A marine mammal is defined, under 50 C.F.R. § 216.3, as "those specimens of the following orders, which are morphologically adapted to the marine environment, whether alive or dead, and any part thereof, including but not limited to, any raw, dressed or dyed fur or skin: Cetacea (whales and porpoises), Pinnipedia, other than walrus (seals and sea lions).
Taking, under 50 C.F.R. § 216.3, means "to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal. This includes, without limitation . . . [to] feeding or attempting to feed a marine mammal in the wild."
Finally, under 50 C.F.R. § 216.3, feeding includes "providing other platforms from which feeding is conducted or supported . . ."
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Thomas Rainelli and Michael Malausky, sole shareholder of Hathaway's Boat Rentals, Inc. ("Respondents") are individuals engaged in a commercial business that includes as part of its business sighting and feeding and playing with dolphins. Entire Record. Respondents are persons subject to the
jurisdiction of the United States.
2. The hearing in this matter was held on July 15, 1999 at the United States District Court in Panama City, Florida.
3. At the commencement of the hearing, the Respondents were fully advised of the standard of proof in these proceedings, their legal rights, the possible outcomes of the proceeding, and the collection procedures used by the government in the event the Respondents lose.
4. The Respondents stated on the record that they understood the charges filed against them and that appearing without legal counsel could adversely affect the outcome of the proceeding. The Respondents, however, indicated that they desired to proceed without legal counsel.
5. Porpoise and dolphin are used interchangeably. See e.g., 50 C.F.R. 216.24; Transcript 133-134, 136.
6. The parties stipulated that the dolphins pictured in the Agency's Exhibit 7 are Atlantic bottlenose dolphins covered under 50 C.F.R. Part 216 and regulated under the feeding ban. Transcript 137.
7. The Agency has continually attempted to educate the public on the dangers of feeding dolphins. See e.g., Agency Exhibits 12 through 26. Transcript 141-151. Feeding dolphins is harmful to their health and welfare. It causes them to lose their natural wariness, alter their natural behavior, and become emboldened to people. For example, mother dolphins have been observed teaching their young to beg instead of forage. Transcript 137-140.
8. Both Respondents stipulated at the hearing that they knew that it was both improper and illegal to feed dolphins. Transcript 28. However, at no point did Malausky tell Mr. Hill Love, a special agent for the Social Security Service in Texas on vacation in Panama City, that feeding dolphins was absolutely prohibited. Transcript 55.
9. Rainelli, a holder of a U.S. Coast Guard license, was the captain of the vessel in the dolphin feedings at issue in this case. Entire Record. Rainelli did not contest the factual allegations contained in the NOVA. Transcript 31; 43-44
10. Maluasky, although not physically present during the dolphin feeding incident, is liable for the allegations contained in the NOVA pursuant to 50 C.F.R. § 216.3 which notes that feeding includes "providing other platforms from which feeding is conducted or supported . . .
11. Here, even though Hathaway's only leased the boat slip to Tropical, the owner of the boat used in the dolphin feeding, Transcript 32, Hathaway's held itself out as the rentor of the boat in question, as evidenced by Hathaway's Rental Agreement and business cards. Agency Exhibit 2, 29; Transcript 55.
12. On June 15, 1998, Love approached Hathaway's for information on parasailing. During the course of his discussion with an employee at Hathaway's, he was informed that Hathaway's also took their customers out to feed the dolphins. Attracted to the idea that he could feed dolphins, Love made a reservation to go parasailing on June 17, 1998. Agency Exhibit 1; Transcript 47.
13. On June 17, 1998, Love returned with his sons to Hathaway's and filled out Hathaway's Boat Rental Agreement with the assistance of a Hathaway employee, later identified as Missy Boyett. Transcript 52; Agency Exhibit 2.
14. At that time, Rainelli introduced himself to Love and began discussing dolphin feeding. Rainelli warned Love that they had to be "very careful of marine cops . . ." and that "it was illegal to feed dolphins above the water line, but . . . [not] below the water line." Transcript 53. Ms. Chanti Hance,Rainelli's assistant during the trip, and Mr. Malausky were present during the conversation. Transcript 53. Malausky nodded his head in agreement. Transcript 53.
15. Love, at the urging of Malausky, purchased $ 15.00 of frozen cigar minnows to feed dolphins. Malausky indicated that cigar minnows "really work" in feeding dolphins. Transcript 41; 58. (According to Florida Marine Patrol Officer R. P. Bryant, based on his experience with people who fed dolphins, cigar minnows are commonly used to feed dolphins. Transcript 103.)
16. Rainelli and Hance then took Love and his sons to an area in the bay region identified by Rainelli and Hance as "a favorite place where they took customers to feed dolphins." Transcript 60. Ms. Hance took a cigar minnow and splashed it in the water and a dolphin "with many different colored striations" appeared and was fed by Hance and Rainelli at least five times. Transcript 61. After the feeding, Love and his sons swam with the dolphin. Transcript 60-61. Hance and Rainelli then tried unsuccessfully to attract other dolphins.
17. Rainelli and Hance subsequently took Love and his sons roughly three hundred yards out into the Gulf of Mexico where they splashed the cigar minnow in the water to attract more dolphins. Transcript 61. The striated dolphin followed them to the Gulf of Mexico and four other dolphins appeared. Transcript 62.
18. Rainelli, Hance, Love and his oldest son fed and played with the five dolphins. Agency Exhibit 7; Transcript 62-64. Their activity attracted a crowd of onlookers. Transcript 62-63.
19. Plain-clothes officer Florida Marine Patrol Officer A. McMillion, anchored in the Gulf of Mexico east of the jetties in an unmarked vessel approximately fifty (50) yards away from Rainelli's vessel, observed Hance and Rainelli lean over the side of the vessel to feed dolphins with cigar minnows. Transcript 87-89; Agency Exhibit 3; 32. Officer McMillion then swam from his boat to Respondent's vessel and observed the feeding up close. Transcript 90-91.
20. After observing the dolphin feeding, Officer McMillion swam back to his boat and radioed Officer Bryant with descriptions of the activity he observed, the individuals involved, and the vessel and its location. Transcript 101. He also noted that the cigar minnows were kept by the port stern of the boat. Transcript 104.
21. Officer Bryant is a Florida Marine Patrol Officer, deputized with NMFS, who works the detail in Panama City Pass and on the marked unit. Transcript 100. He approached Rainelli's vessel and asked Rainelli if he had any bait on board and asked permission to board and search for bait or fish. Transcript 103-4. After being given permission by Rainelli to board, he proceeded to the port stern of boat where he found a container with several cigar minnows. Transcript 104. He explained to Rainelli that he and Hance had been observed feeding dolphins. The Respondent denied the allegations. Transcript 103.
22. He subsequently issued Hance and Rainelli citations for feeding dolphins. Transcript 106. Love, at that point, indicated that he did not know it was illegal to feed dolphins. Transcript 107.
23. The case was then referred to Special Agent Allan Coker who contacted Rainelli. He visited Rainelli at Hathaway's Boat Rentals' wave runner stand. Rainelli admitted that he had gone out and fed the dolphins. Transcript 122-123. He also stated that he has them trained. Agency Exhibit 6. According to Rainelli, whenever someone wants to go parasailing, he makes him or her purchase a bag of cigar minnows for dolphin feeding. Agency Exhibit 6.
24. Coker also testified that he saw pictures of people feeding dolphins on the walls of Hathaway's. Transcript 125-26.
25. Based on this record and evidence adduced at trial, the Agency has proved the allegations contained in the NOVA, i.e. the Respondents committed five violations of the MMPA and 50 C.F.R. § 216.11 in the waters under the jurisdiction of the United States by harassing or attempting to harass by feeding or attempting to feed five marine mammals in the order of Cetacea (a porpoise).
The burden of proof is on the Agency to prove the allegations in the NOVA by a preponderance of the evidence. See, Dept. of Labor v. Greenwich Colleries, 512 U.S. 267 (1994); Steadman v. SEC, 450 U.S. 91, 100-103 (1981). The preponderance of the evidence threshold is met if the Agency demonstrates that the existence of a fact is more probable than its non-existence. See, Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602, 622 (1993). In this case, the Agency has proved the allegations contained in the NOVA by a preponderance of the evidence as detailed in the Findings of Fact and Conclusions of Law.
The facts in this matter are clear and essentially uncontested. Respondent Rainelli, the captain of the vessel used in the dolphin-feeding encounter, admitted to the factual allegations contained in the NOVA. Transcript 31; 43. Moreover, he was photographed and later observed by Officer McMillion feeding cigar minnows to dolphins. Transcript 104. Additionally, he later admitted to Agent Coker that he had gone out and fed the dolphins and even has some of these dolphins trained. Transcript 122-123; Agency Exhibit 6. Thus, it is clear, by his own admission and by the evidence contained in the record, that he committed the violations set forth in the NOVA.
Mr. Malausky, sole shareholder of Hathaway's Boat Rentals, Inc., is likewise liable for the allegations contained in the NOVA. He initially contested his involvement in the dolphin feeding because he was not physically present when the dolphins were fed. However, because Hathaway's (and Malausky) held itself out as the owner n1 of the vessel used to feed dolphins, Hathaway's (and Malausky) provided a platform for dolphin feeding in violation of the MMPA and 50 C.F.R. § 216.3, whose definition of feeding includes "providing other platforms from which feeding is conducted or supported . . .". Transcript 41; Agency Exhibit 2, 29; Transcript 55.
n1 In this case, Hathaway's Boat Rental Agreement and business cards failed to disclaim ownership of the vessel used in the dolphin feeding. Transcript 52, 55; Agency Exhibit 2.
Since the Agency has established the allegations in the NOVA by a preponderance of the evidence, the burden of producing evidence then shifts to the Respondents to rebut or discredit the Agency's evidence. Steadman, 450 U.S. at 101. In this case, Respondents have not proffered a cognizable defense to their actions. Rather they contend that the Agency has engaged in selective prosecution, a contention (as explained by the undersigned at the hearing) that does not rebut the Agency's proof. Consequently, the Agency has met its burden.
Having determined that the Respondents committed the allegations contained in the NOVA, the only issue to be determined is the propriety of the Agency's proposed sanction.
The Agency proposes the imposition of a $ 4,500 civil penalty in this case. The Agency argues that the penalty is appropriate in light of the gravity of the violations and falls within the MMPA penalty schedule. Indeed, the Agency contends that the penalties proposed herein are on the low end of the scale, i.e. $ 900 per count.
"While it is difficult to establish the civil penalty sufficient to deter proscribed conduct, the NOVA amount is assumed to be an educated estimate by NOAA." In the matter of Town Dock Fish, Inc., 6 O.R.W. 580 (NOAA app. 1991). Additionally, the penalty assessed in a NOVA is presumed appropriate and may only be codified by the Administrative Law Judge for good cause. In the Matter of William J. Verna, 4 O.R.W. 64 (NOAA App. 1985); In the Matter of Meredith Fish Co., 4 O.R.W. 914 (NOAA App. 1987).
Here, Respondents knew that it was both improper and illegal to feed dolphins but nevertheless ignored the law. Transcript 28. Respondents have proffered no good reason for mitigating the penalty. Their contention that the Agency engaged in selective prosecution is unpersuasive and ultimately without merit. Since their knowing and willful violations strike at the very heart and purpose of the MMPA, the proposed civil penalty of $ 4,500 is proper.
Since the Agency has proved its case by a preponderance of the evidence and because the Respondents have failed to provide sufficient evidence to rebut the Agency's evidence, and given the lack of mitigating factors in this case, I find that Respondents violated the charges set forth in the NOVA. In light of the foregoing factors and the record considered as a whole, the Agency's proposed civil penalty is appropriate.
ACCORDINGLY, IT IS ORDERED that the Respondents, having been found by the preponderant evidence to have committed the five violations set forth in the NOVA, shall be assessed a civil penalty in the amount of $ 900 per violation, for a total of $ 4,500. Said liability shall be joint and several.
IT IS FURTHER ORDERED that Respondents post a "No Dolphin Feeding" sign and poster on the counter and grounds of Hathaway's Boat Rentals, Inc.
IT IS FUTHER ORDERED that a copy of this Initial Decision shall be served on Respondents and the National Oceanic and Atmospheric Administration in accordance with 15 C.F.R. 904.271(c).
IT IS HEREBY FURTHER ORDERED that 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.
Respondent is hereby notified than 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 to the presiding Judge.
LIST OF WITNESSES
1. Hill M. Love
2. Officer A. McMillion
3. Officer R. P. Bryant
4. NMFS Special Agent Allan Coker
5. Trevor Stradlin
6. Thomas E. Rainelli
7. Michael Malausky
LIST OF EXHIBITS
Agency Exhibit No.
1. Mr. Hill Love's Statement.
2. Hathaway's Boat Rental Agreement signed by Mr. Love and his two children.
3. Offense Incident Report by Florida Marine Officer A. McMilion.
4. Offense Incident Report by Officer R. P. Bryant.
5. Citation singed by Officer R. P. Bryant.
6. Offense Investigation Report by NMFS Special Agent Allan Coker.
7. Thirteen (13) Photographs
8. Negative File Index signed by NFMS Allan Coker.
9. Settlement Agreement between NOAA and Chanti Hance.
10. Settlement Agreement between NOAA and Tropical Parasail.
11. Vessel Titling and Registration showing Tropical Parasail as owner of vessel
12. NOAA Brochure entitled Protecting Marine Mammals.
13. Department of Commerce Press Release dated June 30, 1994, entitled Notice to
14. Department of Commerce Press Release dated July 1, 1994, entitled If You
Love Dolphins, Don't Feed Them, Federal Agency Warns.
15. Department of Commerce Press Release dated August 24, 1995, entitled Feeding
and Swimming with Dolphins is Illegal and Harmful, Federal Agency Warns.
16. Brochure entitled Protecting Dolphins, Admire Them from a Distance.
17. Department of Commerce Press Release dated May 16, 1997, entitled Feeding
and Harassing Dolphins is Harmful and Illegal.
18. News Herald Article entitled Marine Fishery Service, Don't Feed Dolphins,
dated May 20, 1997.
19. News Herald Article entitled Dolphins in the Wild: Feeding Ban Makes Sense
to Some, Sticks in the Craw of Others, dated May 25, 1997.
20. News Herald Article titled Dolphin Feeding Story is Hard to Swallow, dated
June 6, 1997.
21. MMPA Bulletin dated First Quarter 1998.
22. Department of Commerce Press Release dated January 20, 1998 entitled Dolphin
Feeding and Harassment Still Illegal.
23. News Herald Article entitled Don't Feed, Harass the Dolphins, dated May 23,
24. News Herald Article entitled Begging the Point: Marine Fisheries Keen to
Enforcing Laws about Human Interaction with Dolphins dated May 24, 1998.
25. News Herald Article entitled Dolphin Feeding Wanes on the Surface, dated
August 22, 1998.
26. Department of Commerce News Release dated May 28, 1999, entitled
Dolphin Feeding and Harassment is Harmful and Illegal, Federal Agency Reminds
Public and Boaters.
27. NOAA Penalty Schedule
28. Twenty-three (23) photographs
29. Hathaway's Boat Rentals Card
30. Charging Document
31. Marine Mammal Protection Act and regulations.
32. Map of St. Andrews Bay Area.