*1
Cir.1992).
(9th
526,
made,
Corpuz,
F.2d
upon selec-
the transfer
which
prison
the minimum
sen
Corpuz held that
probationer
to which
tion of a district
could receive was one third of his
tence Ohler
permitted
proceed.
Ohler
required or
was
years
original
of three
probation sentence
assert
violation
does not
(i.e.,
Corpuz
year
prison).
one
in
has been
Oregon
a district
be
requirement
Supreme
deci
permitted
overruled
a recent
Court
which he
—
Granderson,
sion, United States v.
U.S.
ceed.
-,
1259,
interest
tion, district court to to whether the juris- is made exercises its
which the transfer sufficiently familiarizing itself after
diction the case. analogous to a sen- is somewhat
The issue preside over tencing by judge who did not America, UNITED STATES context, sentencing In the trial of the case. Plaintiff-Appellee, get and a does not notice the defendant v. reassigned an- hearing the case is before Instead, HAYASHI, Defendant-Appellant. sentencing. rec- judge for David examined to determine whether ord is No. 92-10044. sufficiently familiar sentencing judge was authority no has found with the case. Ohler Appeals, Court of United States retaining recognizing liberty interest Ninth Circuit. judicial officers who have
jurisdiction those 6, Nov. 1992. Argued and Submitted familiarity greatest with his ease. See Jones, 982 F.2d States v. Sept. United Decided Cir.1993). (9th argued, has not nor Ohler Amending Opinion on Order Marsh, Judge suggest, that does the record Rehearing and Denial of probation revocation presided at his who Rehearing En Banc fa- Oregon, lacked sufficient the District Hence, we find that miliarity with his case. deprive jurisdiction did not
the transfer of any right created or interest
Ohler
statute. YEAR AS ONE-THIRD OF
III. ONE
THE SENTENCE ORIGINAL court revoked Ohler’s
The district year him to one
probation and sentenced interpret relying precedent circuit
prison, 3565(a), States v. United *2 Silvert,
Alexander First Asst. Federal Defender, Honolulu, HI, Public for defen- dant-appellant. Kubo, Jr., Atty.,
Edward H. Asst. U.S. Honolulu, HI, plaintiff-appellee. for BROWNING, NORRIS, Before: REINHARDT, Judges. Circuit Opinion by Judge REINHARDT; Dissent by Judge BROWNING.
Appeal from the United States District Hawaii, Court for the District of Alan C. Kay, Judge, Presiding. District ORDER opinion Septem- and dissent filed on ber are amended as follows: [Edi- tor’s Note: Amendments incorpo- have been purposes publication]. rated for amendments, majority With these panel deny appellee’s has voted to peti- rehearing. tion for sponte made a sua judge An active request to rehear the government case en banc. The requested rehearing also en banc in its re- sponse papers. The matter failed to receive of the votes of the nonrecused judges active in favor of en banc consider- Fed.R.App.P. ation. petition rehearing for is denied and suggestion rehearing en banc is re-
jected.
OPINION REINHARDT, Judge: Circuit Hayashi appeals David his conviction of taking a marine mammal in violation of 16 1372(a)(2)(A). We hold that (MMPA) Marine Mammal Protection Act regulations implementing the act do not peals grounds vague- take reasonable of unconstitutional make it a crime to insufficiency eating fish or bait off a ness and porpoises from evidence. We deter Therefore, agree that we conclude his conviction must be reversed.1 fisherman’s line. supported Haya- evidence insufficient *3 conviction, and we reverse. shi’s tt The MMPA declares unlawful for I any person to “take” a marine mammal in 24,1991, January Haya- morning of On the United States waters. See 16 U.S.C. fisherman, shi, part-time commercial 1372(a)(2)(A). § term “The ‘take’ means to fishing for Ahi off the coast of his son were harass, hunt, kill, capture, attempt or or Waianae, group porpoises Hawaii. A of four harass, hunt, capture, any or kill marine tuna and his began to eat the off 1362(13). § mammal.” 16 U.S.C. The Hoping impact the bullets son’s lines. of prescribes MMPA both civil and criminal hitting porpoises the water would scare penalties, apply only persons the latter catch, away Hayashi fired two from their “knowingly” any provision who violate porpois- rifle shots into the water behind the 1375(b). act. See porpoises. not hit es. The shots did lines, they Hayashis government agrees in their The When the reeled defi- possible application had in fact eaten a nition of “take” with discovered that a Hayashi is part “attempt of at least one of the tuna. “to harass” or to ha- rass.” The statute itself fails to define “ha- reported A state enforcement officer agencies gov- rass.” Various of the federal (NMFS) National Marine Fisheries Service promulgated regulations ernment have im- occupants Hayashi’s of vessel had fired plementing regulations ap- the MMPA.2 The 1991, dolphins. February In NMFS NMFS, plicable issued son, agents Hayashi and his tak- interviewed do define “harass” but further define April from each. An written statements including: “take” as 22, charged Hayashi 1991 information animals, parts collection of The dead knowingly taking a marine mammal viola- thereof; 1372(a)(2)(A). MMPA, the restraint or detention of a tion of the mammal, tempo- no matter how parties proceed The consented to before a mammal; rary; tagging neg- a marine magistrate judge. July deny- In after ligent operation or intentional of an air- ing Hayashi’s motion to dismiss the informa- vessel, doing craft or or the vagueness, mag- tion for unconstitutional negligent or intentional act which results Hayashi judge istrate tried and convicted disturbing molesting a marine mam- stipulated facts. The submitted facts con- mal; attempting to feed a statements, Hayashis’ sisted of the and an marine mammal in the wild. agent’s report NMFS and notes on the inter- Hayashi appeal- “disturbing views of the father and son. The or mo- 216.3.3 court, renewing vague- lesting” example only regulatory ed to the district is the defi- argument raising potentially applicable Hayashi’s ness a claim of nition act insuffi- firing group cient evidence. December without a rifle into the water behind a argument, away oral the district court affirmed the to scare them from his Hayashi ap- regula- conviction conclude that the written order. lines.4 We Hayashi’s insufficiency proposed, 1. Because we reverse on it had been when committed argument, effect, however, we do not reach his unconstitutional charged Was in acts. It vagueness claim. charging Hayashi when the information was filed, and when he was tried. parties agree 2. Both that administrative clarify prohibitions tions in the MMPA. 4.Although clause and others in- acts, above, negligent only "know- clude as noted "feeding” 3. The clause was added to section final by ing” support violations can criminal conviction an amendment effective 11,693 (1991) (final rule). See 56 under the MMPA. effect, although amendment was therefore not in underlying parties’ briefing, not reach the conduct As a result of the both tion does magistrate judge at trial and the district Hayashi’s conviction. appeal employed court on def- 17.3, inition 50 C.F.R. which does not A with which define crime charged.6 regulation Initially, differs from the we note that two substantial er- 216.3, definition “take” 50 C.F.R. proceedings rors infected the before the particularly in the former’s reference judge magistrate and the district court. disruption “feeding.” Section is- First, parties, magistrate judge, both agency in sued a different a different employed court all the district the incorrect NMFS, department imple- federal from the charged regulatory definition of the crime. *4 statute, entirely separate ments an En- the Second, rested, the district affirmance court’s effect, dangered Species Act.7 In the district part, upon negli- in the erroneous belief entirely ignored appropriate regu- court the criminally gent punishable acts are under the latory definition set out in section 216.3. Ha- MMPA. yashi’s conviction and its affirmance rest upon application wrong regulatory def- opposing Hayashi’s In motion to dis inition.8 miss, government suggested using definition of “harass” set forth in 50 C.F.R. Consistent with the MMPA criminal 17.3, negligent § “an intentional or act or scheme, penalty charged the information Ha inju omission which creates the likelihood of yashi “knowingly” taking with a marine ry by annoying to wildlife it to an such extent MMPA, mammal. Under the no criminal significantly disrupt as to normal behavioral penalty negligent can attach for conduct. patterns breeding, feeding, which include ... However, referring in the district court to sheltering.” argument, gov At oral 17.3, regulatory in definition section magistrate ernment did submit for acts, negligent parties which includes judge’s consideration the defini statutory failed to inform the court of this Nonetheless, tion in section 216.3. in an requisite “knowing” conduct criminal swering Hayashi’s appeal to the district liability Indeed, briefing to attach. court, government again argued court, that sec appeal Hayashi argued to the district tion 17.3 appropriately-controlling was the specifies that the MMPA no mens rea ele Hayashi acquiesced brief, definition. answering Hayashi’s ment. promoted government this view.5 took no to draw the dis- bears, otters, walrus, Ignoring implementation its issuance in and manatees. We eventu- statute, Hayashi argued different that the 17.3 ally supplemental briefing ordered in order to specific definition controls because it is more to permit parties proper regula- to address the However, "disturbing the term "harass.” tion, section 216.3. molesting” clause in 50 C.F.R. 216.3 seems directly applicable most to “harass” rather than suggest 7. This is not to that section 17.3 not hunt, statutory to the other forms of "take” — However, analogous authority. be useful even if Therefore, capture, although technically or kill. regulation implementing a a different statute "take,” defining “disturbing molesting” interpreting aid in those under another logically clause in section 216.3 is as statute, starting point still must be the 11,694 "harass” section 17.3. 56 Cf. facially applicable question. to the statute in (1991) (NMFS) (referring "disturbing or mo- lesting regulation” standard of the current regard MMPA). to definition of "harass” under supplemental briefing, government 8. On ar- gues that this mistake was not be- briefing appeal, party On neither identified very cause section 17.3 is similar to section appropriate regulation. 50 C.F.R. 216.3 as the so, facially 216.3. Even the two sections are Instead, both relied section 17.3. In addi- Moreover, similarity distinct. no level of excuses tion, time, cited, government for the first government's bring facially- failure to its own 18.3, regulation C.F.R. which is an MMPA applicable regulation to the courts’ attention at Service, sepa- issued the Fish and Wildlife a prior point supplemental appellate some brief- agency department rate in a different from the response specifically identify- to an order Although NMFS. section 18.3 and 216.3 are ing section 216.3. identical, 18.3, nearly terms, explicit section its apply polar does not but to rea, 1375(b), we would not crime and its mens hesi- to 16 U.S.C. attention triet court’s See, e.g., United States v. tate to reverse. “knowledge” requirement. explicit its (9th Cir.1987) Washington, 819 F.2d of this clear Apparently unaware equivocal” (“ambiguous instructions court, command, relying upon 50 the district issue” of level of intent reversible “basic vio- concluded Combs, error); F.2d States v. United upon either could rest of the MMPA lation Cir.1985) (instruction (9th broad- In ad- conduct.9 or intentional negligent ening possible for conviction “was so basis claim, insufficiency dressing Hayashi’s lacking explanation of the offense charged that, “[fjiring the rifle held district court fundamentally its that was elements negligent containing porpoises was a waters inadequate”).11 erroneous and injury a likelihood act that created suggest Although on to Here, it went porpoises.” we need not determine whether also showed intentional that the evidence in a similar result should obtain ease tried eating, stop porpoises from attempt jury. judge magistrate rather to a neg- facts; belief that court’s erroneous stipulated the district Hayashi was tried on support an MMPA criminal ligence could to resolve magistrate judge was Haya- consideration tainted its disputes weigh conviction or to the credibili- factual *5 Thus, Hayashi’s conviction appeal. shi’s have a clear factual ty of We witnesses. only upon incor- not an Hayashi’s rested its affirmance to record from which review con- definition, upon a but also regulatory viction, perpet- rect further and can do so without required misunderstanding mens rea. of uating the fundamental errors described of, Therefore, cognizant but not hin- above. most affected the These errors two per- by, mistakes that dered the elemental every proscrip criminal of basic elements Hayashi’s ap- and district court vaded trial reus, itself, and the or act tion —the actus there was suffi- peal, we whether consider rea, required for or mental element mens to convict of cient evidence liability. resulted not The errors “knowing taking” of a marine mammal misunderstanding of inter obscure of the MMPA. violation misreading of gloss, from a basic pretive statutory regulatory commands. clear B lawyer compli was Although every involved errors, responsibility for cit these above, con government As noted ultimately prosecuting the correct crime lies a criminal that committed tends government.10 with the porpoises; “taking” by “harassing” the “ha See 16 is left the statute. if this case been rass” undefined precedent, our had Under 1362(13). to the admin similarly If we look jury with instructions tried to a “tak- regulations, the form of istrative the definition of incorrect as to both (instruction 17.3, (9th permitted conviction upon Cir. Although section the court relied assisting harboring charge escape). the same error even had it have made when well regulation. proper 50 resorted § to raise the issue on have the failure We excused "negligent intentional” includes 216.3 also See appeal well as in district court. United as Only the statute clear acts. reference to makes Arrellano, 1209, 1211, 812 F.2d States v. modified "taking” "knowing.” be must that criminal (erroneous Cir.1987) (9th instruc 835 235 F.2d state). Finally, we as to mental tempted complicity of We to note are when defense counsel affir have even reversed proceed- directly represented in these others not matively See United in the error. collaborated catalog ings. say as of it to Suffice Cir.1988) Solis, (9th v. 841 F.2d 309 States expands, only expect we can basic crimes federal (instruction uncharged to in addition crime familiarity stemming of from lack errors despite ac charged plain defense is error crime proscriptions proliferate legal to fur- individual ther. Thus, collaboration). quiescence and identify errors that to the fundamental failure failed to raise the prevent 11. Even the defendant when would not rever infected his conviction reversed, court, we in the district have issue holding grounds tried had this case been sal on those jury permitting an instruction jury- plain uncharged is error. crime convict for Vowiell, F.2d States v. See United ing” specified in 50 C.F.R. “taking,” similarly signif- is tute a must entail a potentially applicable Hayashi’s act of fir- icant level of intrusiveness. into the water behind the “take,” The NMFS definition of them from divert lines is the applied supports also prohibition of “intentional act which re- interpretation. See 50 C.F.R. 216.3. disturbing molesting a marine sults tagging porpoise detention of a are However, mammal.” “disturb” and “molest” significant each upon direct and intrusions much more definitive than “harass.” ordinary the mammal’s activities. The col- very general terms, requiring All three are lection dead mammals also a di- involves us resort to their context to ascertain their upon wild; rect intrusion in the meaning. suggests activity “collection” sustained to lo- Following principle “familiar cate —or even to facilitate the of— demise statutory grouped construction that words dying deceased or marine mammals. The given a list should be meaning,” related we purpose basic of the “collection” prohibition look to the other undoubtedly to deter kill- difficult-to-detect examples “taking.” Third Nat’l Bank in ings by prohibiting possession mammals Ltd., Impac 312, 322, Nashville v. 432 U.S. by-products. dead mammal In the context of (1977). S.Ct. L.Ed.2d 368 examples, “molesting these other disturb- “hunt,” groups The statute “harass” with ing” in 50 C.F.R. 216.3 must refer to direct “capture,” and “kill” prohibited as forms of disruptions porpoise’s severe natural “taking.” The latter three each involve di behavior. rect and intrusions the nor for our case is even mal, life-sustaining activities of a marine stronger if we refer to 50 C.F.R. mammal; killing permanent is a direct and *6 regulatory definition of urged by “harass” intrusion, hunting capturing while cause government upon the which the district significant disruptions of a marine mammal’s exclusively court above, relied. As discussed natural state. Consistent these section issued under Endangered the terms, “harassment,” to “taking” a constitute Species Act, controlling is not the MMPA, the must entail a under similar level improper definition and an starting point is of direct intrusion. any prosecution; for MMPA it is nonetheless Interpreting “harassment” under the analogous authority that is of considerable significant MMPA to involve a direct and assistance in interpreting 50 C.F.R. 216.- comports also intrusion with a common un- specifically requires Section 17.3 signifi- derstanding “take,” of the term of which disruption cant of “normal” pat- behavioral simply “harass” one form. To “take” a terns. Deterrence of abnormal mam- marine strongly
marine mammal suggests a serious activity mal proscribed. is not diversion of the mammal from its natural Congressional emphasis upon This protecting routine. passing concern in natural ani- mal comports about MMPA marine “in behavior with the mammals dan- MMPA em- ger phasis depletion of extinction or marine as a result of mammals as essential components supports man’s activities” conception ecosystem. the natural marine 2(1), 92-522, 2(2), “take.” MMPA See 92-522, Pub.L. No. MMPA Pub.L. 86 Stat. (1972) (1972) (marine 86 Stat. (findings and declaration mammals “should be policy).12 Killing, permitted capturing, hunting beyond to diminish point fit the common understanding they of the term. which cease to be a function- MMPA, “Harassment” under to consti- ecosystem they element of which describing legislation, need for by prohibition ties” addressed MMPA of "tak- Report accompanying House refers to MMPA ing” seriously intrusive acts. shot, mammals that marine up, soned, "have been blown death, boats, clubbed to poi- run down 13. The NMFS has referred to 17.3 in section exposed indig- to a of other multitude interpreting meaning of "harass” under the H.Rep. nities.” Cong., No. 92d 1st Sess. 11,695. Fed.Reg. MMPA. See 56 (1971), reprinted in 1972 U.S.C.C.A.N. suggests “indigni- 4144. This list also discourage eating from bait and underlies the them hooked concern that part”). The are a disturbing mammals was tuna from his lines—an act that is not prohibition against nature, not for part as a part porpoise’s eating for mammals a normal habits. endanger ways hu- acting mammals scaring away if the shots succeeded in Even property. man life porpoises stipulated facts do —and porpoises not tell us whether the were aware regulations act and other- Interpreting the of, to, any or reacted diversion wise, interference prohibiting isolated shots — eating activity, from off the fisherman’s lines is not of mammal with abnormal absurdity. significance required Under such for a under would lead to anyone acted to interpretation, Hayashi’s who broad the MMPA. conduct was not the any way interfered with prevent direct, or in disruption por- kind of serious potential activity would face marine mammal poise’s customary pursuits required to find a legally Nothing could prosecution. criminal “taking.” Reasonable acts to deter modern-day from Jonah be done to save eating from fish or bait off a fisher- whale, rampaging devouring or to deter a man’s line are not criminal under Neither mauling a child. polar bear MMPA.15 swimming into intent on could conclusion that the MMPA and the Our waters, or into the severely contaminated regulations implementing the act do not boat, be diverted propellers of a motorized reach act finds further and more good actions of a Samaritan. the selfless support in the most recent NMFS examples the unrea- are but of what These regulatory definition of amendment of the sonably interpretation advocated broad “take.” Effective the NMFS us to. Our con- government would lead “feeding attempting to disrup- added feed” to direct and serious clusion example behavior fall under tions of normal mammal section 216.3 as “harassment” 11,693 comports with a more Fed.Reg. the term “harass” under the MMPA. See 56 understanding (1991) (final (1990) rule); 35,328 of the extent reasonable scope rule) of the MMPA.14 (proposed (“feeding activities alter of marine mammals in such a the behavior the act for Applying our harassment”). they way that constitute One convicted, conclude Hayashi was we which motivating concern amend- *7 insufficient evidence to find that there was feeding the belief that human ment was “taking” by “harassment.” The mammals, primarily dolphins facts, entirely stipulated consisting almost potentially dangerous modi- porpoises, led Hayashi’s and his son’s statements feeding of normal behavior. See 56 fication did investigator, show NMFS 11,696 (“feeding ... harmful Fed.Reg. at the nor did he hit them. not fire at disrupts their natural behavior because simply successive shots behind He fired two feeding patterns”). porpoises of the and normal and outside the area clubbing por- vague- safety. Conversely, physically Hayashi's Although we do not reach challenge, in the absence of poise ness we note that with a baseball bat would have been more appropriately restrictive construction of the safety perspective, our reasonable from a human regulations, “harass” would raise MMPA and its clubbing injury such a would almost from adequate potential a serious issue of notice certainly disruption a severe of the result in violators. porpoise’s life activities. vary 15. What is will circum- concluding reasonable that the MMPA We note that in however, emphasize, that the rea- stances. We private certain acts of fishermen does not reach steps on their im- sonableness of deterrent rests response porpoises eating fish off their in lines, pact For in- the marine mammal alone. extraordinary deterioration in we work no stance, sentencing Hayashi, magistrate in already Regulations porpoise protection. afford shooting dangerous judge "it’s to be noted that pro- fishermen even more extensive commercial a lot of other fisher- from a boat because there's prosecution. See 50 C.F.R. MMPA tections from you you’re men around and could ricochet private We afford fishermen safety just looking human for trouble.” From a required by interpretation protection our lesser perspective, Hayashi’s have been unrea- act of the statute. sonable, human but the MMPAdoes not address regard, specifically the NMFS not- believe or the NMFS intended ed that “the dead fish offered to the animals to create such a “fisherman’s dilemma.” might condition them to seek other dead fish found on in such as those baited hooks or fish Ill nets.” Id. The Marine Mammal Commis- We hold that reasonable actions —those sion, favorably commenting resulting disruption not in severe rule, posed feeding may noted that condition mammal’s normal routine —to porpois- deter approach animals to watercraft “where there eating es from fish or bait off a fine they is an increased likelihood that will be- are not rendered criminal MMPA entangled fishing gear, come be struck regulations. its Because the evidence shows
vessels, shot, poisoned, foreign or be or fed Hayashi’s reasonable, action was we con- 11,695. objects.” Id. supported clude that insufficient evidence Thus, proscrib- amendment conviction. We reverse. intended, run, ing “feeding” long precisely to deter the kind of REVERSED. behav- ior that attempted witnessed and deter, run, by
himself to firing BROWNING, the short R. Judge, JAMES Circuit the rifle into the water. It would make little dissenting. prohibit sense for the MMPA to reasonable majority unjustifiably restricts
private discourage type measures to of breadth of the Marine Mammal Protection animal specifi- behavior that the NMFS has Act to subjecting Hayashi avoid to a criminal cally identified as detrimental to marine prosecution majority regards as unrea- mammals. The most recent NMFS modifi- gloss imposed by sonable. The cation of the definition of “take” scope “taking,” key jurisdic- to limit the supports our of the MMPA as Act, tional term in the has no source in the reaching Hayashi’s not conduct. language, legislative history structure or Finally, quandary we potentially note the support the Act and derives little from the Hayashi’s created for position one were we various circumstances collected to sustain it. not to hold that the MMPA allows reasonable ignores It purpose structure and steps resulting in direct and se- —those substantially Act and weakens it as an instru- disruption vere of the mammal’s life activi- ment effectuating public policy deter- ties —to deter on bait by Congress. mined Allowing porpoises hooked fish. to feed on bait “feeding” well run afoul of the I prohibition in bring section 216.3 and Much more is at defining stake in fisherman to the vigilant attention term enforcers of our criminal laws.16 If free- reason- dom dolphins able to fire his rifle at *8 protect to divert to fishing from a caught by tuna prohibited, line were his son. meaning the fisherman would as- signed face to impossible this term Guilty authority conundrum. of defines the of by “feeding” Secretary “harassment” of nothing, Secretary if he did Interior and the guilty and by “disturbing” regulate of “harassment” if of Commerce to private public and he took steps prevent to feeding, affecting our activities marine mammals.1 The hypothetical Hayashi possible authority granted would face Secretary by the Act prosecution under prohibit the MMPA no to acts harmful to marine mammals matter which course he chose. develop We do not encourage and to and means of en- Indeed, not, dolphin feeding if it did then undoubtedly follow from this new form of "fish- 16. targeted by ing" "feeding" by dolphin feeding cruises the NMFS amend- cruises. ment prohi- could circumvent the new by putting they bition the food use to attract Secretary The Act divides duties between the of dolphins on hook and line. The same deleterious Secretary Interior and the of Commerce. 16 1362(12). behavior § modification intended to be "Secretary” U.S.C. The term refers prevented by "feeding" prohibition would to both. suring keyed their survival is directly history, tive Secretary’s regulations, and indirectly to the concept “taking.” of A type conduct approved the Secre- cramped “taking” construction of the term tary past in point all to an aspects will therefore restrict most of the jurisdictional of the “taking” term sufficiently by Congress scheme envisioned for the to encompass broad Hayashi’s act of deliber- mammals, of marine tection from the moni- ately firing his rifle near dolphins to toring populations of marine mammal to re- frighten them off. fishing into more techniques. search humane “ Act_” broadly ‘Take’ is defined The references in the Act to the term 707, H.Rep. Cong., (1971), No. 92nd 1st Sess. “taking” importance. confirm its The sub- reprinted 4155; 1972 U.S.C.C.A.N. provisions open stantive of the Act with a (Oct. 34,639 see Cong.Rec. also 118 “taking moratorium on the importation and (comments Representative Dingell, Com- of marine mammals and marine mammal mittee Chairman manager and floor of the 1871(a). products.” 16 U.S.C. The Secre- bill). The Act meaning defines “take” as “to tary is exceptions authorized to allow harass, hunt, kill,” capture, attempt by issuing permits taking moratorium “for 1362(13). so. do See 16 U.S.C. importation” mammals, and of marine as de- not coverage did limit the of the statute to §§ tailed the Act. 16 U.S.C. physical injury destruction or of marine prohibited What is permitted what are Rather, sought mammals. it regulate stated terms of “taking” will be fixed variety activity wide potentially human by the definition of term. 16 U.S.C. animals, harmful to such progressing in se- 1372,1375,1376. §§ Secretary’s verity “hunt,” “capture,” “harass” to tory judgments are to be past based finally “kill.” 1972 U.S.C.C.A.N. at projected impact “taking” upon 4147-48. well-being species of the or stocks and the Congress found these activities had threat- purposes policies Act. 16 U.S.C. ened the mammals, survival of marine al- 1373(a). requires The Act though ways fully known. As the to fund research into methods of Committee Marine Merchant and Fisher- minimize the “taking” incidental of marine concluded, circumstances, ies in these 1380,1381. §§ mammals. 16 U.S.C. Vessels elementary seems common sense to the receiving exemptions report Committee that legislation should be “taking” incidental mammals, of marine adopted require that we act conserva- provide information study useful tively no should be taken re- —that effect of certain fishing techniques on marine garding these prove animals populations. 1383a(c), mammal be adverse or even irreversible in their (g). The Act establishes a Marine Mammal effects until more is known. As far as Commission, one of whose duties is to con- done, could be we have endeavored to build “continuing duct a ... review of humane such a legislation conservative bias into the taking means of marine mammals.” presented. here 1402(a)(2).
Id. Congress’s goal at 4148. nothing II optimum protection less “the marine mammals affected the bill.” Id. The scheme of the Act is to define added). *9 (emphasis broadly, giving ample thus scope regu- latory scheme, time, and at the same performs The term “harass” flexibility introduce the that is essential to of broadening function the definition of “tak- effective of ing” administration the Act and therefore the Act itself. The House authorizing approve particu- Report highlights the role of “harass” in lar conduct that prohibit- would otherwise enlarging scope be of Act: “The defini- although ed purposes consistent with the taking of tion of concept ... includes the of Act and by changing harassment, circum- and it is intended that this term statutory language, stances. The legisla- construed sufficiently broadly be to allow the 868 also re- scope “taking” is of of ... The broad or wanton use
regulation of excessive
routinely issued to autho-
permits
flected
operation
compounds, as well as the
chemical
Haya-
no more intrusive
rize conduct
at
also id.
powerboats.” Id. at 4150. See
of
conduct,
agency
in the view of the
which
shi’s
1972).
(Oct. 10,
34,639
4155;
Cong.Rec.
118
constitutes
applicant nonetheless
and the
objected that
Department
The Commerce
Act.
under
prohibited
“harassment”
“taking”
of
was over-
proposed definition
identifying as
been issued
Permits have
that
proposed an alternative
ly
and
broad
authorizing
nonetheless
but
“harassment”
Congress
the term “harassment.”2
omitted
helicopter photogrammetry
approach,
“vessel
at
rejected
proposal. 1972 U.S.C.C.A.N.
identification,”
Fed.Reg.
58
photographic
4166-67,
amended
the Act was
4170. When
4, 1993);
58
(Aug.
see also
41458
1988,
emphasized that
Congress again
1993);
13,
Fed.Reg. 27270
(July
58
37716
mammals,
“[t]aking marine
as defined
of
7, 1993);
“underwater
(May
of
the broadcast
Act,
killing
capturing
limited to
or
is not
Fed.Reg. 26649
recordings,” 57
acoustic
them,
of the mam-
but includes harassment
(June 15, 1992);
Fed.Reg. 7548
see also 58
970, 100th
H.Rep. No.
mals as well.”3
(Feb.
1993);
8,
effects of
and the incidental
(1988), reprinted in 1988
Cong., 2nd Sess.
mammals,
Fed.
marine
intrusive studies of
U.S.C.C.A.N.
6158.
1993);
(May
see also 58 Fed.
Reg. 29199
1993).
(Mar. 16,
Reg. 14202
leg-
“taking”
in the
Examples of
identified
§ 216.3
examples
in 50 C.F.R.
listed
history
regulations support
a suf-
islative
than in favor of the
argue against rather
reading
to encom-
ficiently broad
of the term
“taking”
of
to “direct
majority’s limitation
Hayashi’s conduct.
identified
pass
normal,
upon the
significant
intrusions
pursuit
mammals]
[of
the “intentional
marine mam-
life-sustaining
activities
devices” as
or use of acoustic deterrence
(Opinion p.
Under
mal.”
falling
examples of harassment
within
detention,”
tion,
“no matter
a
or
“restraint
prohibition.
U.S.C.C.A.N.
Act’s
“taking,”
qualifies
temporary,”
how
“taking”
of
regulatory explanation
6164. The
requires
majority’s proposed
standard
moderately
only
conduct that
identifies
intrusion.” “Collec-
“direct and
significant catch-
and includes the
intrusive
support
dead animals” does
tion of
act
“any
negligent
signifi-
all
or intentional
other
majority’s requirement
“direct
molesting a
disturbing
life-sustaining
or
activities.”
which results
cant intrusion
cannot be con-
“Tagging
a marine mammal”
216.3.4
marine mammal.” See 50 C.F.R.
other,
clearer indi-
proposed by
when the rule conflicts
the Commerce De-
The definition
intent,
ignored.”
results should be
'taking'
its
partment
mean
cations
was: "The term
shall
States,
v. United
896 F.2d
hunting
Leslie Salt Co.
wounding, capturing
killing
or
or
or
(9th Cir.1990).
wound, capture
pursuing
or
with an intent
kill."
U.S.C.C.A.N. at 4170.
provides
in-
4.50 C.F.R.
216.3
cludes:
principle
“familiar
invokes the
grouped
in a
construction that words
collect,
kill,
harass, hunt, capture,
or
or
given
meaning.”
list
related
Third
should be
harass, hunt,
collect,
attempt
capture,
or
Ltd.,
Impac,
432 U.S.
includes,
Nat’l Bank in Nashville v.
kill, any
This
with-
marine mammal.
312, 322,
2307, 2313,
commercial fisherman and that the conduct to be reasonable. underlying during his conviction occurred problems majority’s approach with the regulations period enforcing to which the are obvious. It is not within power exemption applied. Hayashi did not majority to extend the commercial fisher- exemption, claim fell within his activities exemption men to non-commercial fishermen. however, permit and the record does not majority It is irrelevant that the extends to Nonetheless, question. determination of only por- non-commercial fishermen “some and substance of the existence protections” tion of the afforded to commer- regulatory exception significant. by Congress cial fishermen and the Secre- regulations enforcing tary, exemp- protections the 1988 or that majority’s tion contradict the conclusion that extends to non-commercial fishermen are reasonable, prohibits the Act direct and if they moderate and indeed are. intrusions on a marine mammal’s life-sustain- Although question was not raised ing activities. The authorization to “take” parties, there was an obvious reason for protect marine mammals to a fisherman’s Congress exemption to limit the to commer- expressly catch to conduct limited “not killing cial fishermen. Harassment and injury expected to cause death or to a marine dolphins are inevitable commercial tuna 229.6(e)(5), §§ mammal.” 50 C.F.R. 229.- fishing operations. Congress’s purpose was 7(d). limitation This makes clear conduct killing injury to limit the dolphins necessary protect expected a catch and not possible destroying far as without the tuna to threaten the life of a was none- fishing industry. The result was a broad prohibi- theless included within the statute’s prohibition injurious of conduct porpoises against “taking.” exemption with an fishing commercial
Thus, exemption operations the commercial restraining system per- fishermen under a indicates on its regulations face that committed mits and administered Secretary. when he shot Non-commercial was not protect exempt prohibition catch. The would not flat of conduct regulations superseded inflicting inju- 9. These the 1980 tect catch their "without death or tions. ry marine mammal.” 50 C.F.R. 216.- 24(d)(5)(ii). Similarly, regulations par- allowed necessary steps ticular fishermen take *12 injurious to marine mammals non- because fishing large
commercial did not involve a
economic interest wished
tect. Congress’s approach,
Under chosen
Secretary charged striking is the bal- protection
ance between the of marine mam-
mals and the economic health of commercial
fishing. good And with reason. The Secre-
tary expertise ability has the study
the effects techniques of commercial expand
on marine mammals and to or con- exemption
tract an as new information majority’s
evolves. approach, Under
exemption for non-commercial is fishing writ-
ten into “taking,” the definition of and the powerless is exemption to alter the impose conditions or limitations it.11
The majority’s policy view is bad as well as
bad law. BRICKER; Cynthia Bricker,
Edwin L. wife,
husband and Plaintiffs-
Appellants,
v.
ROCKWELL INTERNATIONAL CORPO-
RATION; Corpora- Rockwell Hanford
tion; Westinghouse Corporation; West-
inghouse Corporation, Hanford Defen-
dants-Appellees.
No. 91-36153. Appeals,
United States Court of
Ninth Circuit.
Argued July and Submitted 1993.
Decided Oct. 1993.
Amended Congress's regard 1383a; intent in quirements. clear. The requires exemptions 1988 amendment holders of U.S.C.C.A.N. at 6154-59. stringent registration to meet reporting re-