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November 27, 1995

LEE TEPLEY, Plaintiff,

The opinion of the court was delivered by: ILLSTON

 On November 3, 1995, the Court heard argument on the plaintiff's motion for summary judgment. Having considered the arguments of counsel and the papers submitted, the Court hereby GRANTS the plaintiff's motion.


 On May 10, 1992, plaintiff, Lee Tepley, a free-lance underwater photographer, *fn1" and friend, Lisa Costello, went out in his zodiac motor-powered boat off the coast of Hawaii. They spotted a pod of pilot whales swimming in the distance, engaging in an activity known as "porpoising." They proceeded in the direction of the whales. After watching the whales porpoising alongside the boat for some time, Tepley stopped the boat. The whales continued to mill around the area of the boat, "porpoising" and "spy hopping." *fn2" Costello and Tepley decided to put on their snorkel gear and enter the water with the whales. Apparently, Costello asked Tepley for permission to enter the water, and he gave her his consent. They both entered the water and, as Tepley filmed with an underwater video camera, two or three of the whales began to drift toward Costello. She began to gently touch and pet one or two of them; the whales did not respond to the touching. One of the whales swam away from her, but then turned around, and came back and nipped her on the thigh, spun her around and then released her. Shortly thereafter (how long after is not entirely clear from the record, because the camera stopped for a short time), one of the whales took hold of Costello's ankle in its mouth and brought her down to a depth of approximately forty feet. Tepley's camera was on at this point, and he stated that at first, he did not realize what he was filming. He then saw that it was Costello in the mouth of one of the whales attempting to free herself. About a minute later, the whale brought her to the surface. She was taken to the hospital where she received stitches in her leg. Later, Tepley sold this video to NBC, where it was aired on national television as part of NBC's "I Witness Video" program.

 Thereafter, the National Oceanic Atmospheric Administration (NOAA) accused Tepley of "taking" a pilot whale by "harassment" within the meaning of the Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1372(a)(2)(A) and (B) and a regulation thereunder, 50 C.F.R. § 216.11(b). On November 18, 1992, Tepley was charged through a Notice of Violation (NOVA) with

unlawfully taking at last one pilot whale (Globecephala macrophynchus) a marine mammal, to wit: LEE TEPLEY unlawfully took by harassment one or more pilot whales through operation of a powerboat and subsequent activities in the water.

 There were no allegations of, nor was Tepley charged with, injuring the whales in any way.

 Tepley was fined ten thousand dollars as a civil penalty. Costello was issued a separate NOVA and was assessed a civil penalty of two thousand dollars; however, her fine was waived and the charges dropped in exchange for her cooperation in the investigation of the incident.

 Tepley requested administrative review. After a hearing before an Administrative Law Judge (ALJ) in San Francisco on June 12 and 13, 1993, Tepley was found guilty of harassing the whales. Specifically, the ALJ determined that Tepley had chased the whales and that it was "primarily the chase" of the whales that constituted "sustained and serious disruption of normal marine activity." A.R. at tab 35, p.7. The ALJ also found, based almost exclusively upon the government's expert witness, Dr. Ridgeway, that Tepley was responsible for the events that occurred underwater because he believed that Tepley's camera may have "emitted a sound" that harassed the whales. Id. at p. 8. This finding was based in large part on Dr. Ridgeway's testimony that the whale pulled Costello under water because it was annoyed with her and wanted to remove her from its presence. The ALJ also concluded that Tepley was in control of Costello's actions and thus should be held vicariously liable for her actions. Id. at p. 9.

 The NOAA subsequently denied discretionary review of the ALJ's decision, stating that "evidence regarding the degree of care or demonstrable harm is irrelevant for purposes of determining whether a violation based upon harassment has occurred"; rather, the question was simply to be determined by whether the behavior of the pilot whales was altered. A.R. at tab 41, p.2. The NOAA concluded that the ALJ's findings of material fact were "supported by substantial evidence in the record and that no legal or procedural error or abuse of discretion has occurred." Id. at 3. On February 9, 1995, by Administrative Order, the decision became final for purposes of judicial review.

 Tepley filed this action for judicial review of the NOAA's final decision pursuant to the Administrative Procedures Act, 5 U.S.C. § 551, et seq., in federal district court on March 12, 1995. He now moves for summary judgment overturning the ALJ's decision.


 Both parties agree that judicial review of an agency decision is subject to review under the standards set forth in the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1988). Unless there is "substantial evidence" in the Administrative Record to support the ALJ's findings, the decision must be rejected as irrational. 5 U.S.C. § 706; Silverman v. U.S. Dept. of Defense, 817 F. Supp. 846 (S.D.Cal. 1993). Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Andrews v. Shalala, 53 F.3d 1035, (9th Cir. 1995). The court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the agency's decision. Andrews, 53 F.3d at 1039. A review for "substantial evidence" is undertaken with "some deference." Howard v. FAA, 17 F.3d 1213, 1216 (9th Cir. 1994).

 The Ninth Circuit considered the definitions of "take" and "harassment" found in 16 U.S.C. § 1372(a)(2)(A) and 50 C.F.R. § 216.3 in United States v. Hayashi, 22 F.3d 859 (9th Cir. 1993). In Hayashi, a commercial fisherman fishing for Ahi fired several rifle shots into the water near some porpoises in an attempt to scare them away from his catch. The fisherman was prosecuted criminally for taking the porpoises by harassment under the MMPA. The court noted that the term "harass" is left undefined by the statute. Id. at 863. The court analyzed ...

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