## Facts

- Environmental plaintiffs challenged federal authorization of dolphin mortality in the eastern tropical Pacific yellowfin tuna purse-seine fishery under the Marine Mammal Protection Act (MMPA).
- The Secretary of Commerce, through the National Marine Fisheries Service (NMFS), had long administered a general permit framework (codified and extended by 1984 MMPA amendments) allowing the American Tunaboat Association fleet to incidentally take dolphins subject to caps and operational conditions.
- The MMPA generally bars “taking” marine mammals but allows limited exceptions; the statute treats “depleted” stocks (below their optimum sustainable population) as warranting heightened protection.
- In 1993, NMFS formally listed the northeastern offshore spotted dolphin stock as “depleted.”
- A separate western/southern offshore spotted dolphin stock was not listed as depleted, but fishing operations could not reliably distinguish the stocks during sets on dolphin schools.
- Plaintiffs argued the depletion listing required the Secretary to stop authorizing incidental take of the depleted northeastern offshore stock and, because of intermixing, to stop incidental take of the non-depleted western/southern stock as well.
- The Secretary and industry intervenors argued the general permit scheme could continue despite the depleted listing and that the cited MMPA provisions did not compel an immediate cessation.

## Issues

1. Whether the MMPA permits the Secretary to continue authorizing incidental take of a species or stock after it has been determined “depleted,” as applied to the northeastern offshore spotted dolphin.
2. Whether the MMPA requires the Secretary to prohibit incidental take of the non-depleted western/southern spotted dolphin stock because such taking would foreseeably result in taking the depleted northeastern stock.

## Decision

- The court converted plaintiffs’ preliminary-injunction motion into a motion for partial summary judgment because the dispute presented a fully briefed question of law with no material factual gap as to the depleted stock.
- The court granted partial summary judgment for plaintiffs as to the depleted northeastern offshore spotted dolphin, holding the Secretary may not continue authorizing its incidental take after a depletion determination.
- The court denied broader relief seeking an automatic categorical prohibition on incidental take of the non-depleted western/southern stock on the record presented.
- The motion was granted in part and denied in part.

## Legal Principles

- Under the MMPA’s text, structure, and protective purpose, a formal “depleted” determination functions as a statutory trigger for heightened protection that bars continued incidental-take authorization for that depleted stock under a general permit scheme.
- Where Congress has clearly indicated that depleted stocks receive stricter limits, an agency interpretation allowing continued takes after depletion is not entitled to deference.
- Relief tied to a non-depleted stock requires a distinct statutory basis and evidentiary showing; similarity or operational commingling with a depleted stock did not, by itself on this record, mandate an immediate categorical ban on taking the non-depleted stock.

## Conclusion

The court held that once NMFS formally determines a marine mammal stock is depleted, the MMPA prohibits the Secretary from continuing to authorize incidental take of that depleted stock, and it ordered cessation of further kills of the depleted northeastern offshore spotted dolphin while declining to impose an automatic total ban on taking the non-depleted western/southern stock.


Earth Island Inst. v. Brown, 865 F. Supp. 1364 (N.D. Cal. 1994)