## Facts

- Erv and Sonja Strong operated a commercial tour-boat business in a Texas bay that took customers on cruises to feed wild dolphins.
- The Marine Mammal Protection Act (MMPA) prohibits the “taking” of marine mammals without a permit and defines “take” to include attempts “to harass, hunt, capture, or kill” any marine mammal.
- Congress directed the Secretary of Commerce to promulgate regulations concerning the taking and importing of marine mammals.
- The National Marine Fisheries Service consulted experts regarding dolphin feeding and concluded harm was a real possibility and that habitual feeding cruises should be restricted as harassment.
- The Secretary promulgated a regulation treating feeding marine mammals in the wild as prohibited “harassment,” and therefore a prohibited “take.”
- The Strongs challenged the Secretary’s authority to treat feeding as harassment, rather than contesting a particular permit decision.

## Issues

1. Whether the MMPA permits the Secretary of Commerce to interpret “harass” within “take” to include feeding marine mammals in the wild.
2. Under Chevron, whether Congress directly resolved the question of feeding as a “take,” and if not, whether the agency’s interpretation is reasonable.

## Decision

- The Fifth Circuit vacated the district court’s permanent injunction and upheld the regulation.
- Applying Chevron deference, the court reviewed the statutory interpretation de novo.
- The court held that Congress’s delegation to the Secretary to regulate “taking” allowed the agency to define and apply “harassment” in light of expert evidence.
- The court concluded it was clearly reasonable to treat habitual feeding of wild dolphins as harassment constituting a prohibited “take.”

## Legal Principles

- When a statute does not unambiguously answer the specific regulatory question, courts apply Chevron and sustain an agency’s interpretation if it is a reasonable construction of the statute.
- The MMPA’s delegation to the Secretary to promulgate regulations on “taking” authorizes rules elaborating what conduct constitutes “harassment” and therefore a “take.”
- Courts may credit agency reliance on scientific and expert judgments when assessing whether wildlife-protection regulations are reasonable.

## Conclusion

The Fifth Circuit held that the Secretary of Commerce could reasonably interpret the MMPA’s ban on “taking” marine mammals to include feeding wild dolphins as “harassment,” and it vacated an injunction that had blocked enforcement of the regulation.


Strong v. United States, 5 F.3d 905 (5th Cir. 1993)