## Facts

- Environmental and animal-protection organizations challenged National Marine Fisheries Service (NMFS) regulations and an incidental-take permit issued under the Marine Mammal Protection Act of 1972 (MMPA).
- The dispute arose from eastern tropical Pacific purse-seine tuna fishing, where fishermen located tuna by tracking porpoise and encircled both, causing incidental porpoise injury and death.
- The MMPA established a general moratorium on “taking” marine mammals, with limited permit authority subject to statutory conditions, including management tied to “optimum sustainable population” (OSP).
- NMFS issued an incidental-take permit to the American Tunaboat Association for porpoises without determining affected stocks’ current population levels or OSP, and without findings that allowed takes would maintain stocks at or above OSP.
- The permit did not specify the “number and kind” of marine mammals authorized to be taken and did not require the applicant to demonstrate how operations would comply with the MMPA’s standards.
- The district court granted relief to plaintiffs, held the regulations and permit inconsistent with the MMPA, and declared the permit void.
- While the appeal was pending, NMFS began a multi-year research effort to determine OSP for the relevant porpoise stocks.

## Issues

1. Whether the MMPA permits incidental taking in commercial fishing absent prior determinations of affected stocks’ OSP and findings that authorized takes will not reduce stocks below OSP.
2. Whether a permit satisfies the MMPA when it fails to specify the “number and kind” of marine mammals that may be taken and omits applicant showings of compliance.
3. Whether the challenged regulations and permit were unlawful under the Administrative Procedure Act (APA) as contrary to statutory requirements.

## Decision

- The D.C. Circuit affirmed the judgment invalidating the NMFS permit and sustaining the statutory constraints applied by the district court.
- The court held that incidental-take permitting under the MMPA must be grounded in OSP-based management and cannot proceed while postponing the required biological determinations.
- The court concluded the challenged permit was invalid because it lacked mandatory OSP-related findings and failed to include the required “number and kind” limits.
- The court agreed that NMFS could not relax the statutory burden by issuing open-ended authorizations without requiring applicant demonstrations of compliance.

## Legal Principles

- Under the MMPA, permitting exceptions to the taking moratorium are limited and must be consistent with maintaining marine mammal stocks at or above OSP.
- The Secretary (through NMFS) must determine relevant population levels and OSP, and make findings linking permitted take levels to OSP-based conservation limits before issuing incidental-take permits.
- MMPA permits must specify the “number and kind” of marine mammals authorized to be taken; omission of numerical and species-specific limits violates the statute.
- Permit applicants must be required to demonstrate compliance with statutory standards; generalized assurances are insufficient.
- Agency action that disregards explicit statutory prerequisites is “not in accordance with law” and is invalid under APA review.

## Conclusion

The D.C. Circuit required strict compliance with the MMPA’s OSP-centered permitting scheme, holding that NMFS lacked authority to authorize incidental porpoise takes through permits that omitted OSP determinations, OSP-related findings, and specific “number and kind” limits.


Committee for Humane Legislation, Inc. v. Richardson, 540 F.2d 1141 (D.C. Cir. 1976)