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January 27, 1994

EARTH ISLAND INSTITUTE, et al., Plaintiffs,
RONALD H. BROWN, et al., Defendants. AMERICAN TUNABOAT ASS'N, et al., Intervenor - Defendants

The opinion of the court was delivered by: THELTON E. HENDERSON

 This matter came before the Court on January 3, 1994, on plaintiffs' Motion for Preliminary Injunction. Having carefully considered the written and oral arguments of counsel, and the record herein, we convert the motion into a motion for partial summary judgment, *fn1" which is granted in part, and denied in part, for the reasons set forth below.


 Over the course of this litigation, this Court has addressed numerous issues relating to the enforcement and meaning of the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§ 1361 et seq. The focal point of the instant dispute is one particular marine mammal: the northeastern offshore spotted dolphin. Plaintiffs contend that the Secretary of Commerce must, under the MMPA, prohibit the further killing of these dolphins in the course of commercial fishing for yellowfin tuna, given his recent ruling that their population levels are now "depleted." According to defendants, however, the MMPA does not require that the Secretary's finding of depletion be given this effect.

 Congress enacted the MMPA in 1972 to protect dolphins and other marine mammals. In particular, Congress was concerned with the high dolphin mortality rates caused by the yellowfin tuna fishing industry in the eastern tropical Pacific Ocean ("ETP"). Earth Island Institute v. Mosbacher, 929 F.2d 1449 (9th Cir. 1991). Because tuna tend to swim underneath dolphins, tuna fleets in the ETP typically set large "purse seine nets" on groups of dolphins. Although this effectively catches the tuna, it also maims or kills the dolphins who become entangled in the nets. Between 1959, when purse seine nets became widely used and 1972, millions of dolphins were killed by tuna fishermen in the ETP. See 58 Fed. Reg. 58285, 58288 (1993).

  The MMPA addressed this problem by imposing a general moratorium on the killing or "taking" of all marine mammals, including dolphins. 16 U.S.C. § 1371; American Tunaboat Ass'n v. Baldrige, 738 F.2d 1013, 1014 (9th Cir. 1984). The moratorium is subject to certain limited exceptions, one of which allows the Secretary of Commerce ("Secretary") to issue permits for the "incidental taking" of marine mammals during commercial fishing operations. 16 U.S.C. § 1371(a)(2). Congress added, however, that "it shall be the immediate goal" that the incidental kill rates in commercial fishing operations be reduced to "insignificant levels approaching zero." Id. In the case of purse seine fishing for yellowfin tuna, this goal shall be satisfied by "a continuation of the application of the best marine mammal safety techniques and equipment that are economically and technologically practicable." Id.

 Pursuant to the commercial fishing exception, the Secretary issued the American Tunaboat Association ("ATA") a general permit which, inter alia, imposed a quota on the number of dolphins killed in the domestic yellowfin tuna fishery in the ETP. In 1984, Congress statutorily extended this permit, subject to certain additional conditions and quotas. 16 U.S.C. § 1374(h)(2). Thus, the ATA permit is now codified in the MMPA.

 On November 1, 1993, the National Marine Fisheries Service ("NMFS") listed the northeastern offshore spotted dolphin as "depleted" in response to a 1991 petition filed by Environmental Solutions International, Greenpeace, and other organizations. 56 Fed. Reg. 65724 (1991); 58 Fed. Reg. 58285 (1993). "Depleted" is a term of art under the MMPA, and means that a species or population stock has fallen "below its optimum sustainable population ("OSP")." 16 U.S.C. § 1362(1)(A). *fn2" Under agency regulations, a species is considered to have fallen below its OSP -- and is therefore "depleted" -- if its population level is less than 60 percent of its estimated "historic" levels, before purse seine fishing became prevalent. 45 Fed. Reg. 72178 (1980); 58 Fed. Reg. 58285 (1993).

 In the case of the northeastern offshore spotted dolphin, the Secretary found that its population has diminished 77 percent from its historic population level of over 3 million in the 1950s. Thus, the current stock level is estimated to be at only 23 percent of its OSP -- a figure "far below" the 60 percent standard for triggering a finding of "depletion." 58 Fed. Reg. 58290, 58295 (1993).

 Plaintiffs argue that the Secretary is not permitted, under the terms of the ATA permit and the MMPA, to allow the ATA to continue killing dolphins that have been listed as depleted. Therefore, the Secretary must prohibit the ATA from continuing to set nets on, and kill, northeastern offshore spotted dolphins. Defendants, however, contend that such actions are permissible under the current ATA permit, and that the MMPA provisions relied on by plaintiffs are irrelevant to the instant dispute. *fn3"

 Defendant-intervenor, the American Tunaboat Association, also participated in this motion, but did not address the primary arguments made by plaintiffs. Rather, it focuses on a separate issue: whether it is entitled to an administrative hearing to challenge the depletion listing before any action affecting its permit can be taken.


 Resolution of this motion requires us to address the following issues. First, whether the incidental killing of northeastern offshore spotted dolphins in the ETP must cease, now that the Secretary has listed this stock as depleted, and if so, whether the western/southern stock should also be afforded this same protection. Second, if either of the above questions are answered in the affirmative, we must resolve whether the ATA is entitled to an opportunity to administratively challenge the depletion listing before any action affecting its permit is taken. We address these issues in turn.

 A. Whether commercial tuna fishermen, operating under the ATA permit, are prohibited from killing northeastern offshore spotted dolphins, now that their population is depleted

 Under the MMPA, the Secretary normally issues a permit for commercial fishing operations after notice and hearing. In the case of the ATA permit, this process was protracted and complex, and often precipitated litigation. See H.R. No. 758, 98th Cong., 2nd Sess., 5, reprinted in 1984 U.S.C.C.A.N. 635, 638 ("1984 House Report"). Thus, once domestic dolphin mortality rates declined significantly, Congress decided that a more streamlined approach was merited. Id. at 4-5. Accordingly, in 1984, Congress bypassed the process for administratively renewing the ATA permit and instead statutorily extended the permit that had been issued to the ATA by the Secretary in 1980. At the same time, Congress added several additional restrictions. 16 U.S.C. § 1374(h)(2).

 These 1984 amendments to the MMPA read, in pertinent part, as follows:

(A) Subject to subparagraph (B) [below], the general permit issued under paragraph (1) *fn5" on December 1, 1980 to the American Tunaboat Association is extended to authorize and govern the taking of marine mammals incidental to commercial purse seine fishing for yellowfin tuna during each year after December 31, 1984.
(B) The extension granted under subparagraph (A) is subject to the following conditions. . . .
(iii) During the period of the extension, the terms and conditions of the general permit that are in effect on the date of the enactment of this paragraph shall apply, except that --
(I) the Secretary may make such adjustments as may be appropriate to those terms and conditions that pertain to fishing gear and fishing practice requirements and to permit administration;
(II) any such term and condition may be amended or terminated if the amendment or termination is based on the best scientific information available, including that obtained under the monitoring program required under paragraph (3)(A); and
(III) during each year of the extension, not to exceed 250 coastal spotted dolphin (Stenella attenuata) and not to exceed 2,750 eastern spinner dolphin (Stenella longirostris) may be incidentally taken under the general permit, and no accidental taking of either species is authorized at any time when incidental taking of that species is permitted.
(C) The quota on the incidental taking of coastal spotted dolphin and eastern spinner dolphin under paragraph (2)(B)(iii)(III) shall be treated--
(i) as within, and not in addition to, the overall annual quota under the general permit on the incidental taking of marine mammals. . . .

 16 U.S.C. § 1374(h)(2) (emphasis added). In 1992, Congress further restricted total dolphin mortalities under the ATA permit to 1,000 for the year January 1, 1992 and 800 for the period January 1, 1993 through March 1, 1994, and prohibited any setting of nets on eastern spinner or coastal spotted dolphins. 16 U.S.C. § 1416(a).

 When the above provisions of section 1374(h)(2) are taken together with other provisions of the MMPA, the terms of the 1980 permit, prior agency constructions, and legislative history, there is no doubt that Congress did not intend to allow, under the ATA permit, the continued killing of dolphins that the Secretary has listed as depleted.

 First, as quoted above, the 1984 amendments expressly extend the terms of the permit issued to the ATA by the Secretary in 1980, and expressly state that such terms shall "govern" and "apply," subject to certain additional conditions simultaneously added by Congress in 1984. Section 1374(h)(2)(A) provides that the 1980 permit is "extended to authorize and govern" further takings. Similarly, section 1374(h)(2)(B)(iii) clearly states that "during the period of the extension, the terms and conditions of the general permit that ...

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