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U.S. Department of Commerce, Office of the Secretary

In the Matter of: Darcy Lynn Shawyer
United States
1980 NOAA LEXIS 2


Case Details
Printable Version
Summary:   This case is a civil penalty proceeding under the MMPA for the unlawful importation of eight bottlenose porpoises into the United States.  In this case, the court found that specific intent is not required for importation under the MMPA. The court found that the route taken over the United States, the requirement to land for customs clearance purposes, or weather conditions was known or should have been foreseeable to all parties. 

Opinion of the Court:

1. Marine Mammal Protection Act of 1972, 16 U.S.C. 1371(a) and 1372(a)(2)(B), and regulations at 50 C.F.R. 216.12(a) and 216.13(c)

Civil penalty action for unlawful importation of dolphins into the United States.

2. JURISDICTION - Determination of

Respondents in this action had attempted to obtain a judicial determination that the Agency was prohibited from proceeding against Respondents on the grounds that the Agency lacked both in personam and subject matter jurisdiction. The Circuit Court of Appeals for the District of Columbia found, however, that the issue of jurisdiction should be determined in the first instance by the Agency itself.

3. JURISDICTION - Personal

That the Respondent, a Canadian citizen, agreed at the time of the violation to make himself available for future administrative or judicial process in the United States, and did later testify on issues going to the merits of the case (as opposed to making a special appearance only to contest jurisdiction), is a sufficient basis for personam jurisdiction based on consent.

4. JURISDICTION - Personal

The commission of a single act by a corporation or a corporate agent within a forum may confer jurisdiction over that person because of the nature, quality, and circumstances surrounding the act. Where Respondents had numerous contacts aside from the one at issue, the alleged use of U.S. airspace and airports for the transport of animals could be considered sufficient to confer jurisdiction over Respondents.

5. CAUSE OF ACTION - Prohibitions - Importation - Meaning under MMPA

WORDS and PHRASES - Importation

MMPA regulations promulgated by NOAA do not contain a definition of "importation." Adoption of the definition found in the MMPA regulations of the Department of the Interior, which co-administers the MMPA with the Department of Commerce, is proper in order to maintain consistency in the enforcement of the MMPA, to facilitate Congressional intent to protect marine mammals, and to conform with the definitions of "import" found in other wildlife protection statutes.

6. CAUSE OF ACTION - Prohibitions - Importation - Transshipment as

WORDS and PHRASES - Importation

Entry of an aircraft into the airspace of the United States with a cargo of marine mammals or marine mammal products constitutes an importation under the MMPA, even though the aircraft was transshiping the dolphins through the U.S. from Mexico to Canada, and even though Respondents had no intent to "unlade" the dolphins in the U.S. in the customs law sense.

7. CAUSE OF ACTION - Prohibitions - Importation - International law, effect of

INTERNATIONAL LAW - Treaties

When the MMPA and an international treaty both apply to a situation, MMPA section 1383 requires interpretation of domestic law in a manner consistent with the international treaty.

8. CAUSE OF ACTION - Prohibitions - Importation - International law, effect of

INTERNATIONAL LAW - Treaties

The Convention on International Civil Aviation of 1944, 61 Stat. 1180, states that aircraft are subject to the right of the state flown over to require landing. The United States Customs regulations require timely notice of intended arrival. Although the United States allows special authorization exempting aircraft from required landings for customs and other examinations, Respondent did not obtain such an exemption, and in any event, aircraft must still notify airports of intended arrivals.

9. CAUSE OF ACTION - Prohibitions - Importation - International law, effect of

INTERNATIONAL LAW - Treaties

The Nonscheduled Air Services Agreement between Canada and the United States, 25 U.S.C. 787, does not exempt a carrier from import restrictions on porpoises. The language in the agreement refers specifically to "non-cargo" material, hence is irrelevant to the instant proceeding.

10.AGENCY - Master and servant

CAUSE OF ACTION - Joint liability

Where one Respondent retained substantial control over the transport of the eight porpoises and was on notice that an entry into United States airspace was intended, it cannot be concluded that the aircraft operator, an independent contractor, was solely responsible for the entry of the eight porpoises into the United States.

11.AGENCY - Master and servant

CAUSE OF ACTION - Joint liability

Respondent Shawver was not, as asserted, a mere passenger on the aircraft because she cared for the animals and was actively involved in communications regarding the porpoise; her participation in the importation makes her liable for a penalty assessed under MMPA sections 1371(a) and 1372(a)(2)(B).

12.REMEDIES - Civil penalties - Aggravating circumstances

Joint and several penalty of $10,000 was assessed against Respondents Holer and Marine Wonderland for importing eight porpoises after notice from NMFS agent that such importation would violate MMPA.

INITIAL DECISION

PRELIMINARY STATEMENT

This is a civil penalty proceeding brought against Lynn Darcy Shawver, William Jesse Roberts, John Holer, and Marine Wonderland and Animal Park, Ltd. for an alleged violation of the Marine Mammal Protection Act of 1972 [FN1] (MMPA). Respondents allegedly unlawfully imported eight bottlenose porpoise (Tursiobs truncatus) into the United States from Mexico on January 14, 1977. Respondents have been charged in these civil penalty proceedings with violating Title 16 of the United States Code, sections 1371 (a), 1372 (a)(2)(B), and the implementing regulations 50 C.F.R. §§ 216.12 (a) and 216.13(c). Hearings were held in Tampa, Florida, January 21 and 22, 1980 and in Buffalo, New York on January 24 and 25, 1980.

FACTS

At 1:00 A.M., January 12, 1977, a DC-3 transport owned by Millardair Ltd., a Canadian Corporation, hired by respondents Holer and Marine Wonderland, departed from Toronto, Canada, bound for Ciudad Del Carmen, Mexico. (B 60). [FN2] Enroute, the DC-3 landed in New Orleans, Louisiana, allegedly to check a malfunctioning fuel gage, and to "top off" the fuel tanks. (B61). The aircraft then apparently flew directly across the Gulf of Mexico toward the Yucatan Peninsula, (B 62) eventually arriving at Ciudad Del Carmen around 10:00 A.M. the same day (B64). The aircraft and crew spent that night (Jan. 12/13 ) in Ciudad Del Carmen, (B 65) where respondent Holer based his porpoise catching activity and where he had some animal retention and training facilities. At the time of the aircraft's flight from Canada to Mexico, respondent Holer was already in Ciudad Del Carmen, Mexico. On January 13, eight porpoise, which respondent Holer legally captured in Mexican waters, [FN3] were removed from holding pens and, at about 6:00 P.M., were loaded into the DC-3 transport back to Toronto, Canada. (B 528). The loading of the eight porpoise took over four hours.

While the porpoise were being readied for loading aboard the aircraft, and before the flight operations and control tower closed at 6 P.M., the pilot, Carly Millard, filed a flight plan indicating that he meant to fly from Ciudad Del Carmen, Mexico, to Lake Charles, Louisiana, United States. Respondent Holer testified that he did not know of this flight plan at the time it was filed. (B 554-555). In this proceeding respondent Holer testified that he intended that the airplane fly nonstop to Toronto because "there is a thing they call the Marine Mammal Act that does not permit the landing of Dolphins in the United States". (B 531). After the porpoise were aboard the aircraft, by about midnight, respondent Holer testified that he repeated his instructions to the pilot that the aircraft was not to land in the United States. Others, particularly respondents Shawver and Roberts, testified that they overheard such a conversation. This was also the understanding that Holer assertedly reached with the pilot before the aircraft was chartered. However, since the parties to that charter represent that there was no written agreement, there is no direct evidence apart from these testimonial assertions. About 12:30 A.M., January 14, 1977, the DC-3, with the eight porpoise aboard, departed Ciudad Del Carmen, Mexico. [FN4] On board the aircraft were the pilot, his copilot and engineer, and respondents Shawver and Roberts. Roberts, an animal trainer in the employ of Holer was on board to care for the animals. Mrs. Shawver, the wife of an employee of Holer, working at the Mexican operation, testified that she was merely a passenger, although it appears that she assisted in caring for the animals in transit and became actively involved after the entry of the porpoise into the United States. The aircraft flew a course along, and off-shore from the east coast of Mexico, toward Brownsville, Texas. (T 291). The pilot testified that at about 4:00 A.M., while in the air, approximately 60 miles southeast of Brownsville, Texas, he received a report of bad local weather conditions at Lake Charles, LA. from an aircraft control station in Beaumont, Texas. [FN5]

Apparently the cloud ceiling at Lake Charles was below allowable minimums and visibility there was poor. After some discussion respecting alternative locations the pilot was informed that visibility was within allowable limits at Beaumont, Texas, and he decided to land at the airport there. Around 5:30 A.M., January 14, the customs communications center in San Antonio, Texas, informed the United States customs service in Beaumont, Texas that an aircraft, the DC-3, had entered U.S. airspace without first clearing air traffic control in Brownsville, Texas. (T 292-293). The Brownsville Airport is the designated Federal Aviation Administration (FAA) airport where all aircraft arriving in the United States from the south must obtain permission either to land at the airport or overfly it before entering U.S. airspace. [FN6] Having neither obtained permission to land in Brownsville nor to overfly it for any other destination, it is of little surprise that customs was promptly alerted and kept abreast of the aircraft's whereabouts. [FN7] Customs was further informed that the aircraft was going to land in Beaumont, Texas, a small airport some 300 miles northeast of Brownsville. Upon landing at Beaumont, Texas, the pilot was questioned by customs agent Ippolito, the duty officer from the Port Arthur, Texas customs facility, who had been specially awakened and sent to check this aircraft. After requesting agent Ippolito to board the aircraft, [FN8] the pilot informed him that the DC-3 was enroute to Toronto, Canada, having left Ciudad Del Carmen, Mexico, at 12:30 A.M., January 14. The pilot informed agent Ippolito that he was forced to land at Beaumont, Texas, because of poor weather conditions. The cargo, as explained by the pilot, was eight porpoise to be delivered to Toronto, Canada. All persons aboard the plane were aware of where they were and that a U.S. customs inspection was going on. As a result of this inspection, agent Ippolito initially told the pilot that he was cleared to depart. The pilot replied that he would depart as soon as the weather permitted, and that he was going to the forecaster's office to get a weather report. (B 107). The weather report was such that the pilot chose to stay on the ground in Beaumont, Texas. Agent Ippolito then told the pilot to call when he was ready to go and would clear the plane over the phone. The pilot and crew decided to get some rest at a nearby motel. (B 108-109). Respondents Shawver and Roberts elected to stay with the porpoise on the plane. (B 109). Ippolito returned to his office and began to discuss the porpoise with his colleagues. It is not clear who informed Ippolito that there was a problem with the porpoise being brought into the United States. In any event, customs special agent Thomas Mitchell of Houston, Texas was then contacted by agent Ippolito, who in turn contacted special agent Michael Christian of the National Marine Fisheries Service office in New Orleans LA. (T 283-284). Christian informed Mitchell that the landing of porpoise without a permit would constitute an illegal importation under the Marine Mammal Protection Act. Christian called Charles Fuss, the special agent in charge of Law Enforcement Division, Southeast Region, St. Petersburg, Florida, who directed Christian to go to Beaumont, Texas, and to also check with facilities in the vicinity to see if there was one available with the capacity to hold the porpoise. (T 111). Six Flags Over Texas, a recreational center at Arlington, Texas, indicated that they had an environmentally controlled pool that could be used to store four porpoise. Six Flags agreed to dispatch a truck to transport the porpoise from Beaumont, Texas, to the Six Flags Facility.

About 1:30 P.M. Christian left New Orleans, Louisiana, by car for Beaumont, Texas, arriving around 6:30 P.M. (T 116). Mitchell, with information that there had apparently been at least a violation of the requirement to contact the first point of entry for customs clearance, left Houston, Texas, at 1:00 P.M., arriving at Beaumont, Texas, around 2:30 P.M. (T 285). He discussed with the pilot where the aircraft was coming from, where it was going, why he landed at Beaumont, Texas, [FN9] and the requirements to land and to timely notify United States Customs of an aircraft's pending arrival or landing in the United States. (T 286-288). At this point agent Mitchell concluded that the pilot had not timely notified Customs, and therefore the aircraft was seizable under customs statutes. (T 287-288).

Upon arrival, agent Christian inspected the DC-3 aircraft. During this inspection he noted that there were eight porpoise aboard the aircraft, not four as he had previously understood. (T 117). Agent Christian then spoke with the pilot and inquired as to whether the pilot possessed a permit authorizing the entry of the porpoise into the United States. The pilot stated that he did not personally have such a permit, and that he was not certain at that point whether respondent Holer had a permit for entering the porpoise into U.S. airspace, but that respondent Holer did have a permit for the capture of the porpoise in Mexico. (T 121-122). Agent Christian then decided to check with the NMFS to ascertain whether respondent Holer possessed an importation permit. (T 122). While the check was going on, agent Christian returned to the aircraft and spoke with respondents Shawver and Roberts concerning the well-being of the porpoise. Both respondents assured him that the porpoise were doing fine. (T 123). At this juncture, Agent Christian was notified of a phone call from respondent Holer, who was calling from Mexico. Christian inquired as to whether Holer had a permit from the U.S. Government to import the porpoise. Respondent Holer replied that he did not. (T 126).

After the phone call with Holer, Agent Christian resumed talking with the pilot as to the distance, time and other flight capabilities of the aircraft. (T 127). Another phone call came for agent Christian, this time from agent Fuss. Fuss informed Christian that Holer did not possess an importation permit, and therefore the porpoise should be seized. (T 129-130). Shortly after this phone call, Christian informed the pilot that the porpoise were being seized under the Marine Mammal Protection Act of 1972 (T 130). [FN10] Within a few minutes, Holer again called from Mexico, whereupon Agent Christian informed him that the eight porpoise had been seized, and of the plan to release them. (T 131).

After discussions among the government personnel, the decision was made to release six of the porpoise into the Gulf of Mexico and two would be transported to the Six Flags facility in Arlington, Texas. (T 130). This decision was reached after consideration of possible alternatives; releasing the porpoise to several facilities was discussed, but none of the facilities were considered adequate to hold all of the animals. (T 161-162). Also, time was running short. The porpoise had been out of the water for nearly thirty hours. As a general rule, the maximum out-of-water time considered safe for such aquatic animals is thirty-six hours. (T 190, 191, 196, 197).

In implementing the decision to release the six animals, they were loaded onto a borrowed truck to transfer them to Port Sabine, Texas, some 35 miles away, where they would be transported out to sea by a 41 foot Coast Guard cutter. Neither respondents Shawver or Roberts assisted in moving the porpoise to the truck; they only observed. Once at the dock, three of the porpoise were taken from the truck, before midnight of January 14, (T 167) and placed aboard the cutter [FN11] which took them out to sea and released them. All three porpoise were observed and heard, after release, to be swimming and "blowing" (breathing). (T 170).

Concurrent with these events, respondent Holer, still in Mexico, had several frantic and highly emotional telephone conversations with NMFS agents Christian, and Fuss and also with William H. Stevenson, the NMFS Regional Director, Southeast Region. The result of these conversations was that the remaining porpoise would be released to respondent Holer and allowed to be flown to Toronto, as had been originally planned. [FN12] (B 549). In the course of these conversations Mr. Holer was asked, by Director Stevenson, if he would post a ten thousand dollar ($10,000.00) bond on the animals, which respondent Holer declined to do. (T 199). It was then agreed that, in lieu of the bond money, respondent Holer would make himself available to any future administrative or judicial proceedings. [FN13] (T 203-204).

Director Stevenson then ordered Agent Fuss to stop the release of the porpoise. (T 187). At this point however, the first group of three porpoise had been released. When Stevenson contacted the NMFS agents with the porpoise in Port Sabine, Texas, he was informed by a veterinarian at the scene that the other three porpoise at the docks were already entering shock, whereupon Stevenson ordered their release into the Gulf of Mexico. [FN14] Upon release, these porpoise were also observed and heard to be swimming and "blowing". Thus only two porpoise remained, both still aboard the DC-3 aircraft in Beaumont, Texas. At 4:00 A.M. January 15, Mr. Stevenson directed Mr. Fuss to instruct agent Christian to release the remaining two porpoise to the pilot and trainer, per Stevenson's conversation with Holer (T 203). The truck from the Six Flags facility had arrived at the Beaumont Airport and was apparently released after the decision was reached to allow the two porpoise to be flown to Toronto. Eight hours later, about 12:55 P.M. of January 15, when weather conditions permitted, the DC-3 aircraft with the two porpoise aboard departed for Toronto, Canada. (T 172). A further chronology of events is attached as Appendix "A".

HISTORY

It has been over three years since the date on which the alleged importation occurred. To some degree this delay has been due to actions initiated in the United States District and Circuit Courts for the District of Columbia. There respondents attempted to obtain a declaratory judgement prohibiting the Agency from proceeding against respondents Holer and Marine Wonderland on the grounds that the Agency lacked both personal and subject matter jurisdiction over those respondents, and against respondents Shawver and Roberts on the grounds that it lacked subject matter jurisdiction. Declaratory relief was not granted, and the Circuit Court ruled that the issue of jurisdiction should be determined in the first instance by the Agency. [FN15]

JURISDICTION

Respondents allege that the proceedings before this agency tribunal are jurisdictionally defective in that: (1) personal jurisdiction over the Canadian respondents Holer and Marine Wonderland is lacking; and (2) the agency does not have subject matter jurisdiction over the alleged violations. As a general rule, an agency should make the initial determination of its jurisdiction. [FN16]

Personal Jurisdiction

There are two bases upon which this administrative tribunal possesses in personam jurisdiction over the Canadian respondents Holer and Marine Wonderland: consent and minimum contacts. Both of these bases will be discussed.

Respondent Holer consented to the personal jurisdiction of this tribunal, agreeing to make himself available for future administrative or judicial process in the United States. Evidence of respondent Holer's consent to personal jurisdiction can be found in his testimony, the testimony of others, and in the findings of the United States Court of Appeals, District of Columbia Circuit in Marine Wonderland. [FN17]

Consent is a sufficient basis to confer jurisdiction of a forum over a person. [FN18] In his testimony, respondent Holer stated that "(I)f there are any legal complications, that I would face them." (B 544). Additionally, in a conversation with Director Stevenson, when Stevenson informed respondent Holer that he could take custody of the remaining two porpoise if Holer agreed to come to the United States for any litigation including the alleged violations, respondent Holer replied "That is one thing you don't need to worry about." (B 592). These statements, made voluntarily by respondent Holer, constitute consent to personal jurisdiction of this agency tribunal.

Further, neither respondent Holer nor his counsel stated in the testimony or briefs that the appearance of respondent Holer was a special appearance only to contest the jurisdiction issue. To the contrary, respondent's attorney directly examined respondent Holer upon issues which go to the merits of the case, not just the procedural issue of jurisdiction. Respondent Holer was directly examined as to the formation of the oral contract with the transport aircraft corporation (B 513-523), the activities of the other respondents (B 534, 538-540), and respondent Holer's understanding of the Marine Mammal Protection Act. (B 514-515; B 531; B 545). These questions and answers of respondent's counsel and respondent go to the merits of the case, not just to the procedural issue of jurisdiction, and constitute consent to the jurisdiction of this agency tribunal.

In Marine Wonderland [FN19] the court found:

"...The National Marine Fisheries Service allowed Holer to retain [two porpoise] after he telephonically acknowledged that the animals were still in the seizure of the United States government, consented to Federal jurisdiction, and agreed to make himself available for future administrative or judicial process in the united States." [FN20]

I concur in this finding of the Circuit Court of Appeals of the District of Columbia.

Personal jurisdiction over respondents Holer and Marine Wonderland can also be based upon their contacts with the United States. The commission of a single act, by a corporation or a corporate agent, within a forum may confer jurisdiction over that person because of the nature, quality of and circumstances surrounding the act. [FN21] It may be that the nature and quality of the act committed in this case, the alleged use of U.S. airspace and airports for the transport of eight marine mammals without the required permits, could be considered sufficient to confer jurisdiction over respondents Holer and Marine Wonderland. The determination here need not be based on this single entry, for both principal respondents have had numerous other contacts with the United States.

In 1975, respondent Holer, representing Marine Wonderland, spent about two weeks in Texas contracting and preparing for the purchase of a killer whale for transport to Marine Wonderland in Toronto, Canada. (T 414-419). In 1974, respondent Holer transhipped four porpoise by commercial airlines to Buffalo, New York, where his employees transferred the animals to a Marine Wonderland truck for transport to Canada. (B 571). [FN22] In 1968, prior to the effective date of the MMPA, respondent Holer, as agent for Marine Wonderland, contracted with Nevin Stewart to capture dolphins in Florida waters, and transport them to Buffalo where they were picked up by Marine Wonderland employees. (T 425; 427). In 1969, Stewart performed a similar service for respondent Holer and Marine Wonderland; on that occasion respondent Holer met Stewart in Florida. (T 427-428). It appears that all of the contacts made by respondent Holer were on behalf of Marine Wonderland a commercial enterprise which is in fact his alter ego. (ALJ Ex. 4). From these contacts, particularly those made after enactment of the Marine Mammal Protection Act of 1972, in conjunction with the acts complained of in this proceeding, I find that respondent Holer and Marine Wonderland, did establish sufficient minimum contacts such that subjecting these respondents to this action in personam does not offend traditional notions of fair play and substantial justice.

I therefore conclude that personal jurisdiction over respondents Holer and Marine Wonderland based upon voluntary, uncoerced consent to such jurisdiction and sufficient minimum contacts with the United States has been established with respect to the activities encompassed in the alleged violations.

Subject Matter Jurisdiction

Whether this agency has subject matter jurisdiction over the alleged violations hinges upon whether respondents actions constitute an "importation" under the Marine Mammal Protection Act of 1972 (MMPA). [FN23] The National Oceanic and Atmospheric Administration, which is charged with the administration of the MMPA, must be accorded the first opportunity to interpret the meaning of "importation." Unless the agency's interpretation is plainly erroneous or inconsistent with the regulation, it is of controlling weight. [FN24]

Importation

The words "importation" and "import" are not defined in the MMPA. However, the word "import", as it pertains to the MMPA, has been defined in the implementing regulations. This definition of "import" is as follows:

"To land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing or introduction constitutes an importation within the meaning of the tariff laws of the United States." [FN25]

Two points are important to note; (1) this definition is that of the Department of Interior which co-administers the MMPA with the Department of Commerce, and (2) intent is not an element of an importation.

The Marine Mammal Protection Act is administered by both the Department of Commerce, through the National Oceanic and Atmospheric Administration (NOAA), and the Department of Interior, through the Fish and Wildlife Service. This joint administration by the two departments is due to the jurisdictional situation at the time of the enactment of the MMPA in 1972. NOAA had responsibility for the cetaceans (whales, porpoise, dolphins) and some pinnipeds (seals), and the Fish and Wildlife Service of the Department of the Interior had regulatory authority over the remaining species of marine mammals, i.e., walruses, sea otters, polar bears, manatees, and other land based mammals associated with the marine environment. This split of jurisdiction was maintained "largely upon the hope and expectation that a Department of Natural Resources would be shortly forthcoming, at which point the two programs would be merged into one. [FN26] However, that Department was never created, and the jurisdictional and regulatory authority split exists to this day.

The efficiency of this dual management system would be diminished by nonuniformity of interpretation of the Act. Incidents may occur which involve two or more species falling within both categories, and the law would be contorted if the same action constituted an "importation" of one species of marine mammal, (e.g., a whale) and not for another (e.g., a sea otter). It is logical that the Department of Interior's definition of "import" should be the definition adopted by the Department of Commerce in order to maintain the efficiency of this dual management system.

The starting point of statutory interpretation is, of course, the language of the act. [FN27] The terms of the MMPA must be read as the Government argues. The sweeping prohibition in § 102(a)(2)(B) [FN28] makes it unlawful "for any person to use any port, harbor, or other place under the jurisdiction of the United States for any purpose in any way connected with the taking or importation of marine mammals or marine mammal products." (Emphasis added). Although this language does not define "importation", it does provide guidance respecting Congress' intention to protect marine mammals, "to the greatest extent feasible", [FN29] by imposing strong restrictive measures on the importation of marine mammals or their products. Section 102(a)(2)(B) relates directly to Congress' intent to reduce traffic in marine mammals and their products to achieve protection of these animals not only in the United States but "in other parts of the world." [FN30] Thus the statutory scheme suggests a broad definition of "import".

Another point of consideration for statutory construction and interpretation is the analysis of similar statutes. This is a well recognized basis for statutory interpretations. [FN31]

The enactment of the MMPA occured between the adoption of two other wildlife protection statutes, both of which define the word "import".

In the Fur Seal Act of 1966 [FN32] the word "import" is defined as follows:

"Import" means to land on, bring into, or attempt to land on or bring into any place subject to the jurisdiction of the United States. [FN33]

The prohibitions portion of that section of the statute make it unlawful "... for any person or vessel to transport, import, offer for sale, or possess at any port or place or on any vessel, subject to the jurisdiction of the United States, fur seals, or the parts thereof..." (Emphasis added).

Again it is important to note that under the definition in this act, intent is not an element of an import. [FN34]

In 1973, one year after the enactment of the MMPA, Congress enacted the Endangered Species Act. [FN35] This act defines the term "import" as follows:

"(7) The term "import" means to land on, bring into, or introduce into; or attempt to land on, bring into or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States."

This definition of "import" is the same as that set forth in the Department of Interior regulation quoted above, except for the substitution of the word "tariff" for "custom". Here, also, intent is not an element of import.

The Endangered Species Act has repeatedly been used by the courts as a contemporaneous explanation of congressional intent with respect to the MMPA, an approach followed in the Supreme Court case Andrus v. Allard. [FN36] The similarity of methodology of protecting wildlife adopted by Congress in these three statutes strongly suggests that "import", as used in the MMPA and administered by NOAA, should be defined the same as in these other wildlife protection statutes and as defined by the Department of Interior.

Respondents urge that the customs definition of import be utilized in this proceeding and that an intent on the part of the respondents to bring into the United States and to "unlade" the goods must be established by the proponent in the proceedings, the government. The Customs Service at the U.S. Treasury Department enforces numerous statutes, particularly as they apply to bringing products into the United States, its territories and possessions. Examination of the case law dealing with the definition of "import" reflects a variety of meanings and interpretations [FN37] because the statutory definition or purpose under the various laws is different. [FN38] The definition of import under the MMPA, for enforcement actions does not depend on the use of that term in unrelated statutes and proceedings. [FN39] Rather the MMPA itself, other wildlife statutes, and agency definition are to be looked to as the principal sources of its definition in these circumstances.

Based on the foregoing I conclude that the term "importation" in the MMPA, and for the purposes of this proceeding, is defined as set forth in the regulation issued by the Department of Interior quoted above. [FN40] If there were no such publication I would conclude that the almost identical definition in the Endangered Species Act would apply. [FN35]

Under the above definition, the mammals in question were brought into an area "subject to the jurisdiction of the United States". The entry of an aircraft into the airspace of the United States with a cargo of marine mammals or marine mammal products constitutes such an importation under the statute [FN41] just as surely as if the entry had been effected by a seagoing vessel entering the territorial waters, or a vehicle driving onto lands over which national jurisdiction is claimed. Unless some exemption or exception applies, the entry constitutes an import under the MMPA.

INTERNATIONAL LAW

One of the asserted bases for exemption from the definition of "import" under the MMPA discussed above, is that such claim of jurisdiction contravenes international law. As discussed above, the principal respondents chartered a Canadian aircraft to transport the eight porpoise from Mexico to Canada. Because the DC-3 was chartered as a civil nonscheduled aircraft, providing international air services, it is claimed that the Convention on International Civil Aviation of 1944 [FN42] (Convention), to which Canada and the United States are signatories, except the activity from regulation under the MMPA. When the provisions of an international treaty and the provisions of the MMPA both apply, the provisions of the subchapter titled "Conservation and Protection of Marine Mammals" [FN43] "shall be deemed to be in addition to and not in contravention of the provisions of any existing international treaty . . . which may otherwise apply to the taking of marinemammals." [FN44] This section of the MMPA simply requires that when a United States domestic law and an international treaty both apply, the United States shall interpret the domestic law in such a manner that it is consistent with the international treaty. [FN45]

Respondents contend that the Convention requires the United States to allow foreign civil aircraft to land within the United States without prior clearance where the stop is for "nontraffic" purposes. [FN46] This argument is based upon the following language of the Convention:

"Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services, shall have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing." [FN47] (Emphasis added.)

It is apparent from this language that the "State flown over" (the United States) may require a foreign, civil, nonscheduled aircraft to land incident entry. Also noteworthy is the following language of the Convention:

"Except in a case where, under the terms of this Convention or a special authorization, aircraft are permitted to cross the territory of a contracting state without landing, every aircraft which enters the territory of a contracting State shall, if the regulations of that State so require, land at an airport designated by such State for the purposes of customs and other examination." [FN48]

The United States does allow such "special authorization" exempting the aircraft from the required landing for "customs and other examinations;" [FN49] However, it does not appear that the aircraft involved in this proceeding either possessed, or requested, such an exemption. United States Customs Regulations require that "every aircraft coming into any area from any place outside thereof shall land in such area unless exempted by the Administrator of the Federal Aviation Administration . . ." [FN50]. Further, all aircraft " . . . before coming into any area from any place outside the United States, for security reasons, shall furnish a timely notice of intended arrival . . . " [FN51]. It affirmatively appears in this record that the aircraft in question did not provide a timely notice of intended arrival," and as a result was in violation of United States law. [FN52]

Respondents further contend that the nonscheduled Air Services Agreement [FN53] between Canada and the United States exempts a carrier to the fullest extent possible under its national law from import restrictions on porpoise. This is unqualifiedly incorrect. The language relied on by respondents refers to:

". . . fuels, lubricants, consumable technical supplies, spare parts including engines, regular equipment, ground equipment, stores, and other items intended for use solely in connection with the operation, maintenance or servicing of aircraft . . ." [FN54].

This language refers specifically to non-cargo material; i.e, not porpoise, and is irrelevant to this proceeding.

Thus the Convention on International Civil Aviation of 1944 expressly provides that the State flown over has the right to require landing for customs and other inspections. United States law requires that aircraft entering United States airspace must land unless exempted. The pilot of the chartered aircraft did not request an exemption from the landing requirement. Nor did respondents possess a permit for the importation of the eight porpoise, as required by the MMPA. Had respondents possessed such a permit, and had prior permission been obtained to fly nonstop; i.e, exemption from the landing requirement, the actions would have been in compliance with the provisions of the MMPA and the Convention. [FN55]

Under the construction which respondents appear to urge, every bootlegger or smuggler entering this country by air would have as a defense the claim that he intended to take the goods to another country, and was only transporting them through this country, making "technical stops" to enable transport of the restricted merchandise. The convention provides no such haven.

AGENCY

Respondents alternatively assert that the landing of the porpoise in the United States was directly contrary to their understanding with Millard. Respondent Holer in effect contends that he took appropriate and reasonable measures to assure that the porpoise would not enter the United States. He represents that before the aircraft was chartered and again before its departure from Ciudad Del Carmen to Toronto, the assurances were reiterated to him by the pilot.

It is also argued, long after the fact, that Millard should have somehow flown to Bermuda and from there to Canada. Perhaps such a course would traverse an international route and would not have involved the territorial jurisdiction of the United States, but that is not what the parties contemplated, as far as can be ascertained from this record. Even if all the contemporaneous representations were credible it is plain that a flight over the United States was clearly anticipated. Such a route, through the airspace of this nation constituted a violation, in the absence of the required clearances and permits which both parties were responsible to obtain.

From the facts developed in this record it is concluded that the total responsibility for the transport may not be placed upon one of the parties, in this case Millard, who is now represented to have been an independent contractor. Holer retained substantial control over the transport. He selected the aircraft knowing it had limited altitude, speed and temperature control capabilities against the cautionary advice of his veterinarian, Dr. Geraci. [FN60] His employees were aboard the aircraft, both in coming to Mexico and on the return. One would reasonably expect that the flight crew on such a special charter would be most responsive to the animal handlers during the trip. Even under the construction of the relationship which respondents appear to urge, which makes the aircraft operator out to be, at best, untruthful and a bungler, respondent Holer is not relieved of responsibility because, from the information available to him before the return flight commenced he was on notice that an entry into the United States airspace was intended. From the facts in this record I cannot conclude that the aircraft operator was solely responsible for the entry of the eight porpoise into the United States.

CONCLUSION

I do not accept the respondent's representation that positive assurances were requested and given to the effect that the particular DC-3 aircraft would fly from Ciudad Del Carmen, Mexico, to Toronto, Canada, nonstop. I am incredulous at the representation that there was no written contract for the charter of an aircraft which was to be used for an international trip, and do not accept the after-the-fact oral representations respecting the parties agreement. From the facts, I conclude that it was reasonably anticipated and necessary to land such an ancient DC-3 "gooneybird" aircraft at or near New Orleans before venturing across the Gulf of Mexico, as was in fact done on the trip to Mexico. The return flight, fully loaded, along the coastline, and the landing at Beaumont, Texas, close to the destination airport for which the flight plan was filed, Lake Charles, Louisiana, was clearly within the range of what was intended. Nor do I accept the implication of the parties' stipulation that the DC-3 aircraft was specially equipped and therefore capable of flying the distance nonstop. [FN56] It is patently ridiculous to represent that the heavily loaded DC-3 aircraft with live mammals from sub-tropical waters was destined for a nonstop flight to Toronto, Canada, in the month of January, with no advance information respecting weather conditions across the United States, particularly since it landed and refueled at New Orleans on the way to Mexico when it was practically empty. I conclude that these representations respecting discussions and alleged agreement that there would be a nonstop flight from Ciudad Del Carmen, Mexico, to Toronto, Canada, are after-the-fact biased exaggerations [FN57] and are to be totally disregarded in favor of the conclusion that what actually occurred was consistent with what was intended by the respondents with respect to the transport, route and landing. [FN58] Actions still speak louder than self-serving recollections.

The entry of the aircraft into the airspace of the United States in the morning of January 14, 1977, on the route contemplated by the respondents constituted an importation within the meaning of the Marine Mammal Protection Act and the animals were properly seized following the landing of the aircraft in Beaumont, Texas.

The international agreements cited and discussed above provide no exception to the carrier or the shipper, both of whom are charged with knowledge of, and compliance with, the international agreements and the consistent domestic statutes which required clearance and landing. That the aircraft operator may separately be subject to enforcement proceedings by the U.S. Customs service, the Federal Aviation Administration or the Department of Commerce, does not obviate the remaining respondents liability.

PENALTIES

Based on the record developed in this proceeding, I conclude that the actions of respondents Holer and Marine Wonderland constituted an aggravated violation of the MMPA for which a single maximum civil penalty, authorized by that statute, of ten thousand dollars ($10,000.00) should be assessed against them jointly and severally. [FN59] While I am most impressed with the entrepreneurial spirit displayed by respondent Holer, his blatant disregard for the laws which this nation is entitled to adopt and enforce, in its jurisdiction, cannot be tolerated. He is an operator in a regulated industry. He was warned that transporting marine mammals through the United States would constitute a violation of the MMPA. He was therefore on notice, and should have checked with the Fisheries Service, particularly in light of his prior experience. He sought what I would term a "low budget" means of transportation which was reasonably foreseeable to cause harm or death to the eight porpoise being transported. [FN60] He well knew the manner in which the animals were loaded into the DC-3 aircraft,61 and knew that special care had to be taken for their preservation. The aircraft chosen for the task was grossly inadequate, lacking ground heater and pressurization equipment for this midwinter flight. Respondent Holer had control over most aspects of the flight except for actual pilotage of the aircraft. He selected the plane, and the operator. There were substantial indications that the plane would be required to land, endangering the well-being of the porpoise, from the fact that it had landed on the way to Mexico. The longer return route, along the coast, which he also should have known about, was calculated to also require landing. Even if respondents did believe that their actions would not constitute a violation of the MMPA, this is no defense; ignorance of the law is no excuse.

Respondents Holer and Roberts loaded the porpoise, Roberts cared for them en route, and he would have unloaded them had they all arrived in Toronto, Canada. Respondent Roberts' assistance, in the employ of respondent Holer, throughout the flight did cause an importation to occur for which no permit was issued, in violation of sections 1371(a) and 1372(a)(2)(b) of title 16 of the United States Code. Being in the employ of respondent Holer, and in fact assisting in the entry, constituted a violation of the MMPA, for which I assess the civil penalty of five Hundred Dollars ($500.00). Trainers and other employees must share in the responsibilities for their participation in illegal ventures.

Respondent Shawver represents that she was a mere passenger aboard the DC-3 aircraft. However, it appears that she cared for the animals and after the landing in Beaumont, Texas, she was very actively involved in the communications regarding the porpoise. Hers was not a casual passenger status. Her presence and participation was also a violation of sections 1371(a) and 1372(a)(2)(B) of Title 16 of the United States Code, though less aggravated, for which I assess the civil penalty of fifty dollars ($50.00).

FINDINGS OF FACT

1. Respondent Marine Wonderland & Animal Park, Ltd. has been a Canadian corporation doing business in Niagara Falls, Ontrario, Canada, since at least January 1, 1975.

2. Respondent John Holer is now, and was on January 13 and 14, 1977, a Canadian citizen.

3. Respondent Holer is now, and was on January 13 and 14, the President, sole shareholder and owner of Marine Wonderland and Animal Park, Ltd.

4. Respondent Darcy Lynn Shawver is now, and was on January 13 and 14, 1977, an American citizen, residing in Canada since January 1, 1977.

5. Respondent William Jesse Roberts is now, and was on January 13 and 14, 1977, an American citizen, residing in Canada since January 1, 1977, and was employed by Marine Wonderland and Game Park, Ltd. on January 13 and 14, 1977.

6. Respondent Holer, is the President, sole stockholder and owner of Marine Wonderland and his actions addressed in this proceeding are those of Marine Wonderland and vice versa.

7. Personal jurisdiction over respondents Holer and Marine Wonderland is based on consent, minimum contacts and participation in this proceeding, any one of which is a sufficient basis upon which to rest personal jurisdiction.

8. Personal jurisdiction over respondents Shawver and Roberts is based on United States citizenship, consent and participation in this proceeding.

9. This administrative tribunal has subject matter jurisdiction over this proceeding because respondents actions constituted an "importation" of marine mammals, as that word is used in the MMPA.

10 On January 14, 1977, a DC-3 aircraft, owned and operated by Millardair, and chartered by respondents Holer and Marine Wonderland, departed from Ciudad Del Carmen, Mexico, with a cargo of eight bottlenose porpoise (Tursiops truncatus).

11. The aircraft was chartered to Holer and Marine Wonderland by an agreement between Holer and Millard.

12. The aircraft lacked ground heating and altitude pressurization equipment. The aircraft did no carry sufficient fuel for a nonstop flight from Ciudad Del Carmen, Mexico to Toronto, Canada.

13. The aircraft was incapable of flying over or around large weather fronts, like the one encountered in the midwest on January 14, 1977.

14. Aboard the aircraft were the pilot, copilot, engineer, and respondents Roberts and Shawver. The weight of the aircraft, with the cargo of persons, porpoise and equipment, on departure from Ciudad Del Carmen, Mexico, limited the fule carrying capacity and foreclosed any possibility of a direct nonstop flight to Toronto, Canada.

15. On January 14, 1977 the DC-3 aircraft with porpoise cargo entered U.S. airspace without timely notice to U.S. Customs officials, and without permission either to land at the Brownsville, Texas, airport for customs clearance, or to overfly that airport, and as a result was in violation of United States law.

16. On January 14, 1977, the DC-3 aircraft with porpoise cargo landed at Beaumont, Texas, which, in addition to the facts in finding 15, constituted an importation of marine mammals.

17. The landing at Beaumont, Texas was not an emergency landing, but rather an alternative to the planned landing at Lake Charles, Louisiana, for refueling.

18. The locations described in findings 15 and 16 are areas under the jurisdiction of the United States within the meaning of § 102(a)(2)(B) of the MMPA.

19. Respondents did not possess a permit for the importation of the porpoise, as required in the MMPA; 16 U.S.C. § 1371(a).

20. The landing of the DC-3 with porpoise cargo at Beaumont, Texas, constituted the use of that airport for the importation of the marine mammals, in violation of the MMPA, 16 U.S.C. § 1372(a)(2)(B).

21. On January 14, 1977, the eight porpoise were seized by the National Marine Fisheries Service; six were thereafter released into the Gulf of Mexico and two were released to the custody of respondent Holer and employees while still under seizure.

22. The bottlenose porpoise, scientific name Tursiops truncatus, is a marine mammal within the meaning of the MMPA. See § 3(5) of the MMPA, 16 U.S.C. § 1362(5). The Secretary of Commerce is responsible for enforcement of the MMPA with respect to said marine mammals because the bottlenose porpoise is a member of the order Cetacea. See 3(12)(A) of the MMPA, 16 U.S.C. § 1362(12)(A).

23. In light of the previous notice that respondents Holer and Marine Wonderland had received concerning importations in violation of the MMPA, in combination with aggravating circumstances respecting the landing and treatment of the mammals, a penalty of ten thousand dollars ($10,000.00), jointly and severally, the maximum civil penalty allowed, reasonably describes the relative severity under the MMPA of this offense.

24. In light of respondent Robert's employee status, and of the civil penalties authorized under the MMPA, a penalty of five hundred dollars ($500.00) reasonably describes the relative severity under the MMPA of this offense.

25. In light of respondents Shawver's minimal, but significant, participation in the importation of the marine mammals, and of the civil penalties authorized under the MMPA, a penalty of fifty dollars ($50.00) reasonably describes the relative severity under the MMPA of this offense.

26. The civil penalty assessed each respondent is within the ability of each respondent to pay.

CONCLUSIONS

On the basis of the record and the foregoing findings, I therefore conclude that:

1. On July 14, 1977, respondents Holer, Marine Wonderland, Roberts and Shawver, acting without valid permits, did unlawfully import marine mammals, to wit: eight bottlenose porpoise (Tursiops truncatus), into the United States, in violation of the Marine Mammal Protection Act of 1972, 16 U.S.C. § 1371(a), 1372(a)(2)(B); and 50 C.F.R. §§ 216.12(a) and 216.13(a).

2. The actions of the named respondents caused the importation to occur.

3. The importation was the natural and probable consequence of the respondents actions and thereby constituted sufficient intent under the MMPA. A specific intent to import is not required.

4. The action of the air carrier was not inconsistent with the arrangement made to transport the porpoise from Mexico to Canada. Some entry into U.S. airspace was contemplated by all the parties.

5. The action of the pilot with respect to the route taken and the requirement to land, for customs clearance purposes and because of the weather conditions encountered, was known or should have been forseeable by all parties to the charter.

6. The alleged violations are within the subject matter jurisdiction of the Department of Commerce and of this proceeding.

7. In personam jurisdiction exists over each of the named respondents in this proceeding.

8. A civil penalty of ten thousand dollars ($10,000.00) assessed jointly and severally against respondents Holer and Marine Wonderland is appropriate under the circumstances.

9. A civil penalty of five hundred dollars ($500.00) assessed against respondent Roberts is appropriate under the circumstances.

10. A civil penalty of fifty dollars ($50.00) assessed against respondent Shawver is appropriate under the circumstances.

ORDER

A civil penalty in the amount of ten thousand dollars ($10,000.00) is hereby assessed jointly and severally against respondents Holer and Marine Wonderland & Animal Park, Ltd., and who are hereby directed to pay this assessed amount to the Treasurer of the United States.

A civil penalty of five hundred dollars ($500.00) is hereby assessed against the respondent William Jesse Roberts, who is hereby directed to pay this assessed amount to the Treasurer of the United States.

A civil penalty of fifty dollars ($50.00) is hereby assessed against the respondent Lynn Darcy Shawver, who is hereby directed to pay the assessed amount to the Treasurer of the United States.

I further recommend that forfeiture proceedings be initiated respecting the eight porpoise and any equipment of the respondents used in the capture, training or transport of the Marine Mammals.

SO ORDERED.

HUGH J. DOLAN

Administrative Law Judge

Any appeal must be filed within 10 days of receipt of this decision as provided in 50 C.F.R.246.14(c).

Appendix "A"

The following additional chronology constitutes a further detailing of factual occurrences derived from the testimony. A brief summary, along with the time, of each occurrence is included, with citation to the transcript. Because the recollections of the witnesses were not always identical, particularly with respect to times of occurrences, the chronology does not always reconcile. However, the representations and actions required are accepted as accurate.

Witness Time CST [FN*] Comment

Millard

(B 60) Midnight to 1 A.M. DC-3 departs Toronto

Millard

(B 61) Landing at New Orleans

Holer

(B 525) 10:30 - 11:00 A.M. Plane lands in Carmen

Millard

(B 64) 10:00 A.M. Plane lands in Carmen

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1/13/77

Millard

(B 181) 5:00 or 6:00 P.M. Millard files flight plan at Ciudad Del Carmen for Lake Charles, Louisiana.

Millard

(B 253) 6:00 P.M. Communications station at Ciudad Del Carmen Airport closed.

Roberts

(B 378) 6:00 P.M. Started taking Holer porpoise out of the water (B 528) 5:30 or 6:00 P.M. preparing them for shipment.

Millard

(B 71) 10:00 P.M. Started loading porpoise.

Holer

(B 528) Before midnight Loading of porpoise completed.

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1/14/77

 

Millard

(B 251) After 12:00 midnight Millard leaves Carmen Airport. Tower closed but airport open and well-lit.

Millard 3:00-4:00 A.M. Report of bad weather from (B 190) control station in McAllen, Texas.

(Gov. ex. 10) 3:50 A.M. Aircraft 60 miles southeast of Brownsville request Lake Charles

Weather; pilot refuses to disclose his name, the number of persons aboard the aircraft, or his point of departure, to the McAlen, Texas, control station. Advise of requirement to land and clear customs at Brownsville.

(Gov. ex. 10) 4:20 A.M. Aircraft 50 miles northeast of Brownsville, Texas (in U.S. airspace).

Mitchell

(T 293)

(Gov. ex. 6(a)) 5:30 A.M. Customs informed of an aircraft overflying Brownsville, Texas.

Mitchell

(B 293) 6:20 - 6:25 A.M. Ippolito arrives at (Gov. ex. 18, Beaumont Airport, after pg.4). being notified of DC-3 overflying Brownsville.

Ippolito was notified at 5:30 A.M. at home by Customs Central Communiations. When he arrives at Airport, the DC-3 is already there.

Millard

(B 198) 6:30 Millard lands DC-3 at Beaumont, Texas.

Millard

(B 203; 206) 7:00 A.M. Ippolito inspects and clears DC-3 for takeoff to Toronto, Canada.

Roberts

(B 391) 7:00 A.M. Millard tells Roberts that plane cannot continue because of bad weather.

Shawver

(B 308) 7:00 - 8:00 A.M. Shawver calls Holer in Mexico; re: had to land for fuel, and then could not continue because of weather.

Holer

(B 533-34) 7:00 - 8:00 A.M. Holer awakened by call from Shawver; re: plane grounded due to bad weather.

Holer

(B 535) 8:00 - 8:30 P.M. Holer, in Carmen, calls Millard at Beaumont Airport Customs Office. Millard tells Holer that plane is cleard, but weather too bad to takeoff.

Millard

(B 198; 112) 9:00 A.M. Millard checks into motel near airport. Calls Holer; re: weather. (But See Holer, (B 535)-All calls from Holer to Millard.) Holer wants MIllard to look for another aircraft carrier to transport porpoise to Toronto.

Mitchell

(T 297) 10:00 A.M. Mitchell, in Houston, calls Christian, in New Orleans, informing him of the DC-3 in Beaumont with four porpoise aboard.

Both decide to go to Beaumont. Mitchell checks Treasury Enforcement Computer System for both Millard and Millardair.

Negative on both. Later, a check was done on Holer, and there was a lookout placed on Holer because of previous marine mammal importation.

Shawver

(B 310) About 10:00 A.M. Shawver returns to plane after making phone calls in terminal.

Shawver

(B 314) 11:00 A.M. Shawver goes to motel and tells co-pilot that Holer wants to speak to Millard; gives co-pilot Holer's phone number in Carmen, Mexico.

Fuss

(T 82) Late morning Fuss's office in St. Petersburg receives call from Washington, D.C. Office of Law Enforcement (N.O.A.A.) concerning seizure of a DC-3 in Beaumont, Texas, with porpoise aboard.

Christian

(T 111-112) Noon Fuss calls Christian in Fuss New Orleans and directs (T 82) him to go to Beaumont, Texas, and also to check into various porpoise holding facilities.

Christian calls 3 facilities, Six Flags in Arlington, Texas, could handle 4; sends truck.

Shawver

(B 315) Noon Shawver returns to DC-3 from the motel, and then goes to terminal. Customs wants to know where Millard is; informs Shawver that the plane has been seized. Shawver can't contact Millard, so she informs co-pilot.

Shawver also attempts to contact Holer, but cannot.

Millard

(B 113-114) 1:00 - 2:00 P.M. Millard receives call from Shawver, plane under seizure. Millard wakes crew and all go to airport.

Shawver

(B 317) 1:00 - 2:00 P.M. Shawver returns to aircraft after making phone calls.

Christian

(T 116) 1:30 Christian leaves New Orleans for Beaumont.

Millard

(B 207) 2:00 P.M. Millard arrives in Beaumont, Texas.

Mitchell

(T 285) 2:30 P.M. Mitchell arrives in Beaumont, Texas.

Mitchell

(T 286) After 2:30 P.M. Mitchell interviews Millard, re: landing requirements, timely notification.

Mitchell

(T 305) 2:30 P.M. Aircraft seized by Mitchell.

Millard

(B 115, 201) 2:00 - 3:00 P.M. Millard calls Holer -informs him plane has been seized because of Customs and MMPA violations.

Roberts

(B 395) 3:00 P.M. Security guard tells Roberts that Six Flags is going to take the porpoise.

Christian

(T 117-121) 6:30 P.M. Christian arrives in Beamout, speaks with Customs personnel.

Christian introduced to Millard abd inquires about importation permit.

Millard

(B 116) 8:00 - 9:00 P.M. Mike Christian arrives in Beaumont.

Christian

(T 121) 6:45 P.M. Christian talks with Fuss and informs Fuss that there are 8, not 4, porpoise. They decide to check further to see if Holer has a permit.

Christian

(T 278) 7:00 P.M. Six Flags truck leaves Arlington, Texas.

Christian

(T 128) 7:20 - 7:30 P.M. Christian talks with Millard who says that the DC-3 did not have enough fuel aboard for a non-stop flight from Carmen, Mexico, to Toronto, Canada.

Stevenson

(T 181) Before 8:00 P.M. Fuss calls Stevenson; re; (ALJ ex.1) 8 porpoise in Beaumont, plane seized. Decision made to seize porpoise, disposition plans discussed.

Christian

(T 129) 7:45 P.M. Fuss calls Christian at airport; re: Holer does not have importation permit, therefore seize the porpoise. Plan is for 6 to be released into Gulf of Mexico, 2 young porpoise to go to Six Flags.

Christian

(T 130, 131) 8:00 - 8:15 P.M. Holer calls airport and talks first with Christian. Christian informs Holer that porpoise are under seizure and the plan to release 6 and hand 2 over to Six Flags. Holer also speaks with Roberts; re; seizure of porpoise.

Shawver

(B 318-322) Early evening Holer calls Shawver at airport; Shawver repeats to Holer the charges as told to her by Customs Agent. Millard present during this phone call.

Christian talks with Holer; Shawver leaves room at this point.

Shawver

(B 323) 8:00 - 9:00 P.M. Shawver returns to plane. NMFS agent come to plane and says that the porpoise are being seized.

Stevenson

(T 253) 8:15 P.M. Stevenson calls Fuss; re; (ALJ ex. 1) marine mammal holding facilities.

Millard

(B 212; 118) About 9:00 P.M. Porpoise seized by NMFS Millard

(B 215) 9:00 P.M. Loading of six porpoise onto freight truck begins Christian

(T 166) 9:30 P.M. Transport of six porpoise from aircraft to Port Sabine begins.

Fuss

(T 83) 10:00 P.M. Holer calls Fuss at home; re: objected to seizure; claimed that plane was to fly nonstop. Extremely emotional; hangs up and calls back 20 minutes later; told to call Stevenson.

Stevenson

(T 183-186) 10:00 P.M. Holer calls Stevenson at (ALJ ex. 1) home re: Holer objected to the release of porpoise; questioned legality of release; Holer very upset because thermal shock may kill porpoise. Holer indicated that he has an attorney in both U.S. and Canada.

Stevenson

(T 187) 10:15 - 11:00 P.M. Stevenson call Dunnigan; (ALJ ex. 1) re: legality of release.

Dunnigan advises that release is legal.

Dunnigan and Stevenson decide to go to office.

Stevenson

(T 188-189) After 11:00 P.M. Stevenson call Fuss; (ALJ ex.1) proceed, but do not release any porpoise yet. However, at this point first set of three released; commications very bad between NMFS, Customs and Airport.

Health of porpoise deteriorating; stop release of other 3.

Shawver

(B 326) 11:00 or 12:00 P.M. Roberts and Shawver told to leave plane. They go to the terminal, taking their belongings.

Stevenson

(T 192) Midnight Veterinarian aboard Coast (ALJ ex. 3) Guard Cutter tells Christian, who tells Fuss, who tells Stevenson that porpoise are going into shock. Stevenson makes decision to release second group of three porpoise.

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1/15/77

Christian

(T 278) Midnight Six Flags truck arrives in Beaumont.

Christian

(T 164) 12:10 A.M. Release of first set of three porpoise into Gulf.

Stevenson

(T 193) 12:15 A.M. Holer calls Stevenson (ALJ ex. 1) porpoise released. Holer breaks down; Stevenson tells Holer to call back in 15 minutes.

Stevenson 12:30 A.M. Stevenson returns call to (T 195-198) Holer. Holer says he thought the two remaining porpoise would die if released to Six Flags;

Marine Wonderland facilities were ready for the two animals. Holer consents to make himself available to government for investigation and process in turn for custody of the remaining two porpoise.

Stevenson

(T 207; 208) 12:30 - 1:00 Holer and Stevenson have 'third or fourth' call.

Stevenson asks Holer of phone number of his attorney; Holer refuses to divulge this.

Roberts

(B 407-408) 1:00 A.M. Roberts leaves terminal to water porpoise on plane.

Customs Agent accompanies

Roberts; Roberts shows him how to water and care for

porpoise.

Stevenson

(T 195, 196, 2:00 A.M. + Stevenson calls Dr. 197) Ridgeway (International (ALJ ex.1, Marine Mammal Specialist); p. 5) re: alternatives at this hour. Ridgeway advises that two remaining porpoise should be released to a warm environment, which ruled out Six Flags. Ridgeway also advises that 36 hours time frame for keeping porpoise out of water was a guideline. Porpoise could make it to Toronto.

Stevenson

(T 199-200) 2:30 A.M. Stevenson calls Holer; re: (ALJ ex.1) $10,000.00 bond for release of porpoise.

Holer refuses to post this, but reiterates offer to make himself available to Government for any legal proceedings following from this occurence.

Roberts

(B 410) After 2:00 A.M. Holer calls Roberts at motel; re: Holer has permission to keep reamining two porpoise.

Roberts

(B 412) 2:30 -3:00 A.M. Roberts returns to Shawver aircraft after telling (B326) Shawver that the remaining two porpoise had been released to Millard.

Christian

(T 277) 3:00 A.M. Fuss tells Christian to release porpoise to Millard.

Stevenson

(T 203) 3:00 A.M. Verbal release or porpoise to Millard.

Shawver

(B 326) 7:00 -7:30 A.M. Shawver returns to aircraft.

Mitchell

(T 318) 9:00 A.M. + Cash bond money ($5,000.00) sent to Millard by Holer. Bond money posted to release aircraft.

Christian

(T 271) 10:00 A.M. Written release of remaining two porpoise by Christian to Millard.

Gov't

(Ex. 2 Millard signs seizure release.

Christian

(T 172) 12:55 P.M. Aircraft departs for Toronto from Beaumont, with two remaining porpoise as cargo.

FN* All times are corrected to Central Standard Time (CST).

FN1 16 U.S.C. § 1361 et. seq.

FN2 Throughout this decision citation will be made to testimony as follows: (B 60) means page 60 of the Buffalo, New York transcript; (T 60) means page 60 of the Tampa, Florida transcript.

FN3 See ALJ exhibit 4. In these proceedings the reference may interchangeably be to dolphins or porpoise.

FN4 At this time the control tower at Ciudad Del Carmen, Mexico, had been closed since 6.00 P.M., January 13. (B251)

FN5 The pilot did not have information about the weather conditions from Mexico to Canada at the time of his departure from Ciudad Del Carmen, Mexico. (B 77, 78, 252.) Apparently Millard had expected a quick turnaround and return in the weather system that prevailed at the time of the southbound trip. Holers delay in loading the mammals contributed to the weather uncertainty. (B 65-67 and 525-532.)

FN6 See 19 C.F.R. §§ 6.2; 6.3 (1978). The Brownsville Airport, also, was not a designated customs port of entry for importing wildlife. See note 49.

FN7 When discovery was first made of the plane, which failed to identify itself, entering U.S. airspace from Mexico, it caused a good deal of concern among the FAA Flight Service Station personnel. After determining the aircraft license letters, one radio operator stated, "Oh he's a Canadian that don't know what he's doing I don't think", followed by "I don't know how you're gonna get Customs to him but boy, he don't know regulations". (B97; Govt. ex. 6(c)).

FN8 The pilots demeanor at the time he solicited the customs agent to come aboard the aircraft, his seeming lack of concern or apprehension during and following that inspection and the manner of his retiring to a local motel, (B 107, 536) are also inconsistent with the representation that he knew he was not to land in the United States. He was just too relaxed in his actions, particularly for a pilot who claimed extensive experience in flights across United States borders. A commercial pilot carrying import restricted merchandise would not have been so casual in the face of possible aircraft and cargo seizure. If he had any realization of customs restriction on the cargo it is inconceivable that he would not have landed at Matamoros, Mexico, across the river from Brownsville, Texas, a course of action which he deliberately did not take (B 72).

FN9 There was much testimony that the pilot landed because the plane needed fuel; i.e. the DC-3 did not have enough fuel to fly nonstop from Mexico to Canada. (B 309, 357, 389; T 128, 153, 272, Gov. ex. 15).

FN10 16 U.S.C. 1361 et seq. The civil penalties eventually proposed against respondents were for alleged violations of 16 U.S.C. §§ 1371(a); 1372(a)(2)(B); 1375; 50 C.F.R. §§ 216.12(a), 216.13(a).

FN11 The carrying capacity of the cutter limited its transport capability to three animals per trip. (T 168).

FN12 The release was actually made to respondent Holer's agent, Mr. Millard, the aircraft owner and operator, and respondent's employees who were aboard the plane. It was indicated in the course of these proceedings that only one these two animals survived.

FN13 The United States Customs Service has assessed a five thousand dollar ($5000.00) bond against the corporate owner of the aircraft, Millardair, and the pilot, Millard, which was posted before the aircraft was cleared for departure. The appeal process of the Customs Service proceeding in which the five thousand dollar penalty was assessed, and collected in full, is still pending. (B 256-259, Gov. Ex. 13-15).

The corporate owner and pilot of the aircraft were also initially named as respondents in this proceeding. However, Government counsel has suspended and thereby, in effect, withdrawn the proceedings against those respondents.

FN14 Release of the second group of three porpoise was the proper and humane course of action to be taken. Their long period out of the water, the inadequate facilities aboard the aircraft, particularly the lack of heat after landing, and the 30 or so mile truck ride compelled the release even if there was some question of survival in cooler Gulf waters off the Texas coast.

FN15 Marine Wonderland & Animal Park, Ltd. v. Kreps, 610 F 2d 947, 949 (1979) (hereafter cited as Marine Wonderland).

FN16 Id. "While the [agency's] decision is not the last word, it most assuredly is the first." FPC v. Louisiana Power and Light Co., 406 U.S. at 647 (1971); Marine Engineers Beneficial Association v. Interlake Steamship Co., 370 U.S. 173, 185 (1962).

FN17 Marine Wonderland, Supra note 15.

FN18 See, Restatement 2d, Conflicts of Law, § 32 (1971).

FN19 Supra, note 15.

FN20 Id.

FN21 Cf. Kane v. New Jersey, 242 U.S. 160 (1916); Hess v. Pawloski, 274 U.S. 352 (1926), Young v. Masci, 289 U.S. 253 (1932).

FN22 In Buffalo, Customs officials noted the presence of the animals, but did not charge respondent Holer with an illegal importation under the MMPA. However, a NMFS agent did go to Marine Wonderland in Toronto, Canada, to discuss with respondent Holer the import provisions of the MMPA, and the MMPA in general. From this contact with the NMFS agent, respondent Holer was sufficiently and fairly put on personal notice of the MMPA.

FN23 Marine Wonderland, Supra, note 15.

FN24 The Supreme Court has often emphasized that the expertise of the responsible agency is entitled to great deference in matters of statutory construction. See, Udall v. Tallman, 380 U.S. 1,16 (1965), Bowles v. Seminole Rock and Sand Co., 325 U.S. 410, 413, 414 (1945).

FN25 50 C.F.R. § 10.12.

FN26 See [1972] U.S. Code Cong. & Ad. News 4146.

FN27 See, Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979). "Though we may not end with the words in construing a disputed statute, one certainly begins there." F. Frankfurter, Some Reflections on the Reading of Statutes, 16 (1947).

FN28 16 U.S.C. § 1372(a)(2)(B).

FN29 16 U.S.C. 1361(6).

FN30 "The MMPA addresses not only the killing of marine mammals by Americans, but also the importation of them. This reflects a congressional decision that denial of import privileges is an effective method of protecting marine mammals in other parts of the world. This conclusion is supported by the legislative history." Animal Welfare Institute v. Kreps, 561 F. 2d 1002, 1010 (D.C. Cir. 1977). However, it is also recognized that there are limits on the statute's extraterritorial effect even respecting U.S. citizens. See U.S. v. Mitchell, 553 F. 2d 996 (1977).

FN31 See, Andrus v. Allard, 444 U.S. 51 (1979) where the court used the Marine Mammal Protection Act and Endangered Species Act to interpret the Migratory Bird Treaty Act.

FN32 16 U.S.C. § 1151 et seq.

FN33 16 U.S.C. § 1159(f). This act is also administered by the Department of Commerce.

FN34 The quality of knowledge and intent applicable to these types of statutes is discussed in some detail in Newell 2 Ocean Resources and Wildlife Decisions ES 1074 (1979); Ferguson 2 Ocean Resources and Wildlife Decisions ES 1073 (1979) and cases cited therein.

FN35 16 U.S.C. § 1531 et seq. This Act repealed the Endangered Species Conservation Act of 1969; formerly 1?? U.S.C. §§ 6??8aa-668cc-6 (1970 edition).

FN36 Supra, note 31.

FN37 Words and Phrases, Imports and Imported.

FN38 (U.S. v. Catano, 553 F. 2d 497 (1977); U.S. v. Pentapati, 484 F. 2d 450 (1973).

FN39 Cf. Palnero v. U.S. 112 F. 2d 922 (1940); Middleton v. U.S. 32 F. 2d 239 (1912).

FN40 It is appropriate to note that this definition is set forth in Title 50 of the Code of Federal Regulations where both agencies' regulations are set forth. If Counsel, a researcher or participant in the regulated industry had looked for a definition of import this is the one which would have been found.

FN41 The facts distinguish this case from Carpenter v. Andrus, 485 F. Supp. (1980). In the Carpenter case respondent instructed the carrier not to go into the U.S., whereas in this proceeding, respondent Holer is, under any construction of the facts, charged with knowing that the aircraft would enter U.S. airspace, and that compliance with U.S. laws was required including the custom requirement to obtain clearance, that the plane could be required to land and that a MMPA permit was necessary.

FN42 61 Stat 1180 (1944).

FN43 16 U.S.C. § 1371-1384.

FN44 16 U.S.C. § 1383.

FN45 See, Restatement, 2d, Foreign Relations Law of the United States, § 3 (1965).

FN46 A "Stop for non-traffic purposes" is defined in the convention as "Landing for any purpose other than taking on or discharging passengers, cargo or mail." 61 Stat. 1180, 1207 (Ch. XXII, art. 96) (1944).

FN47 61 Stat. 1180, 1181 (Ch. II, art. 5) (1944).

FN48 61 Stat. 1180, 1183 (Ch. II, art. 10) (1944). When read with article 10 it is apparent that a single inspection or pre-entry waiver is contemplated. Once an aircraft has been cleared either upon landing after entering the U.S. airspace or by prior special authorization, the aircraft does not need to obtain prior permission to make stops within the United States for non-traffic purposes.

FN49 Id. See 19 C.F.R. § 6.2.

FN50 Id. at § 6.2(a).

FN51 Id. at § 6.2(b).

FN52 See also, March 2, 1978, Decision of the Director of Entry Procedures and Penalties Division, U.S. Customs, Department of Treasury. This preliminary determination is being administratively appealed.

It is appropriate to note that respondents apparently could have also been charged with violating the "Lacey" Act, 18 U.S.C. § 41 et seq. Under the Lacey Act any person who transports, or causes to be transported, any wildlife in violation of any Act of Congress or implementing regulation, may be assessed a civil penalty of not more than $5,000.00 for each violation. See, 18 U.S.C. § 43(a)(1)(A) and (C). Further, no person shall import, or cause to be imported, any wildlife into the United States except at the following customs ports of entry: New York, New York, Miami, Florida; Chicago, Illinois; San Francisco, California; Los Angeles, California; New Orleans, Louisiana; Seattle, Washington; and Honolulu, Hawaii. See, 50 C.F.R. § 14.12. See also, U.S. Fish and Wildlife Service v. Bock, _________________________________ Ocean Resources and Wildlife Agency Decisions ________________________________ (June, 1980).

FN53 25 U.S.T. 787 (1974).

FN54 25 U.S.T. 787 (Art. XII. Ch. 1).

FN55 The United States' Position on the purposes of the Convention are clearly articulated in the various presentations made during the conferences which preceded its adoption. The situation in this case seems to have been anticipated. The following extract from the opening address of Adolf A. Berle Jr., the Chairman of the U.S. delegation and President of the Conference, which traced the history of international commerce for the past thousand years is particularly germane.

"The privilege of communication by air with friendly countries, in the view of this Government, is not a right to wander at will throughout the world. In this respect traffic by air differs materially from traffic by sea, where commerce need have no direct connection with the country from which the ship may come. In air commerce, there appears at present to be little place for tramp trade."

FN56 From the pilot's testimony, it was known that the DC-3 did not have enough fuel to fly nonstop. He testified that he burned 750 to 800 gallons from Toronto, Canada, to New Orleans, Louisiana. (B 135). However when the DC-3 landed in Beaumont, Texas, it carried only 550 gallons (B 204), obviously not enough to make a flight longer than one which required 750-800. Even if the extra fuel capacity existed, the amount of cargo foreclosed use of that capacity.

FN57 The reaction of the pilot to agent Christian's questions, particularly regarding permits after the landing in Beaumont, Texas, also indicated that he had little inkling of there being any problem, contrary to what would have been his reply if he had a "nonstop" agreement with respondent Holer.

FN58 Government Exhibit 20.

FN59 In this proceeding, the importation of the eight porpoise has been considered as a single violation of the MMPA, because of the fact that a single movement by aircraft and entry was made. If, in law, eight separate importations occurred, the effect of which was not addressed by counsel, a maximum civil penalty of eighty thousand dollars ($80,000.00) could be assessed against each respondent individually and I would have made such an assessment against Holer and Marine Wonderland jointly and severally.

FN60 See testimony of witness Dr. Geraci, General Consultant of Marine Mammals to respondent Holer (B 6-9).

U.S. Department of Commerce

National Oceanic and Atmospheric Administration

 

 

 

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