Full Case Name:  In the Matter of: Akiko Kawahara, Respondent

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. WORDS and PHRASES - Importation

MMPA regulations promulgated by NOAA do not contain a definition of "importation." Adoption of the definition found in MMPA regulations of the Department of the Interior, which coadministers the MMPA with the Department of Commerce, is proper in order to maintain consistency in the enforcement of the MMPA and to facilitate Congressional intent to protect wildlife resources worldwide.

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

It is irrelevant that one lands at an airport as a stop-over to another country. If a permit for the animals is not obtained under the MMPA, then the landing or stop-over of the animals in a place subject to the jurisdiction of the United States is an importation in violation of MMPA sections 1371(a) and 1372(a)(2)(B).

4. DEFENSES - Mistake - Law

CAUSE OF ACTION - Strict liability violations

Respondent's assertion that she was not informed of the strict prohibitions of the MMPA, even if true, is no defense to MMPA charge, which does not require proof of mens rea, actual knowledge of the law, or specific intent.

5. NOTICE - Adequacy of

As an employee of a firm involved in international commercial trade in birds and animals, Respondent was on notice that restrictions might exist on transporting marine mammals within the U.S., since a reasonable person in Respondent's position would be aware of the U.S. role as a major international force in marine mammal conservation.

INITIAL DECISION

PRELIMINARY STATEMENT

This proceeding arises under the Marine Mammal Protection Act of 1972 (MMPA) 16 U.S.C. § 1361 et seq. and the regulations promulgated thereunder 50 C.F.R. § 216. The National Marine Fisheries Service (NMFS) seeks to assess civil penalties against the Respondent for the allegedly unlawful importation of four Commerson's dolphins [FN1] into the United States.

BACKGROUND

The Respondent, Akiko Kawahara, a citizen of Japan, was served with the notice of violation via Jay Kaplowitz, a New York attorney, who subsequently requested a hearing on her behalf. After numerous postponements of the hearing date based upon representations that a settlement agreement between the parties was imminent, a hearing was scheduled and held in Washington D.C. on October 2, 1979. The previous day, Respondent requested and was denied another postponement. Because her request for a hearing was still outstanding, it was deemed appropriate to allow the government to proceed and thereafter, for the case to be adjudicated. Although the Respondent did not appear and was not represented at the hearing, [FN2] she was subsequently provided with a cassette recording of the proceeding, a list of the exhibits introduced and copies of four exhibits containing information which she might not have been aware of previously. She was also given the opportunity to make any further submissions into the record, before it was closed for decision. The material facts contained in evidence which the government presented have not been contradicted by the Respondent.

FINDINGS

At the time of the alleged violation, the Respondent apparently was employed by her family's business, the Kawahara Bird - Animal Trading Co., Ltd., which had been operating in Japan and internationally for about twenty years. The evidence shows that she flew to Argentina with an associate, Mosaki Mori an agent of the Sunshine International Aquarium in Tokyo, in response to an advertisement by one Aveline Cobreros, an Argentinian merchant, which stated that he had Commerson's dolphins in stock for sale. These dolphins had apparently been caught by Cobreros somewhere off the coast of Argentina. Respondent arranged to transport the dolphins, along with herself and Mosaki Mori, to Buenos Aires from where they would be flown to Tokyo, Japan. The flight arrangements included a stopover at Kennedy International Airport in New York where the dolphins were to have been rested in a temperature controlled facility prior to their transfer to another aircraft for the flight to Tokyo.

In response to the notification by an airline employee that a plane containing marine mammals was scheduled to land at Kennedy Airport at 3:00 a.m, on December 15, 1978, NMFS special agents Packard and Callahan arrived at the airport on that day at approximately 5:00 a.m., with a group from the Mystic Marinelife Aquarium, Mystic Connecticut. Upon their arrival the agents observed four coffin-like crates being unloaded by a forklift in the Lufthansa Airlines cargo terminal. These crates were labeled "Head" and "Tail" at each end, along with "Commerson's Dolphin", and the address of the Sunshine International Aquarium in Tokyo. Inside, the agents found four dolphins, which the two veterinarians present identified as being of the Commerson's species. They were lying on stretchers suspended in salt water. One of the four dolphins was already dead. All four were then transported to the Mystic Marinelife Aquarium where a second dolphin died that day, and a third shortly afterwards. The remaining animal was still alive at the time of the hearing.

From examinations by the two veterinarians, the Curator, and the Director of the Aquarium [FN3] it was concluded that none of the animals could have survived the trip to Japan, which was estimated by the Director, after a consultation with the Respondent at the airport, to have required a minimum of 75 hours in transit from the time of departure from Argentina. An autopsy of the dolphin which was dead on arrival indicated that it had drowned because of too much water in its crate. Unmelted ice in the crate indicated that the animal had expired shortly after takeoff. All four of the dolphins were shipped with too much water and their blowholes had been submerged for unknown periods during the airplane's takeoff, landing, and while banking in flight. The second animal to die had severe lesions on its ventral surface which it was concluded, [FN4] were inflicted during its capture two weeks earlier. The two animals still alive on the date of Mystic Aquarium's official statement (December 18, 1978) [FN5] were reported to be quite thin. With respect to the one which died a few days later, the exact cause was not identified in the record beyond the general stress it encountered during transit. The animal which remained alive at the date of the hearing, suffered from an S-shaped flexure of the tail extending from the flukes to the dorsal fin. The origin of this deformity has not been conclusively established though the Aquarium staff surmised that it may have resulted from severe muscle cramps during the animal's prolonged confinement in the shipping crate.

In the opinions of the veterinarians and members of the Aquarium's staff who examined the animals, the additional injuries and fatalities could have been prevented with proper care of the animals during their transit. In any case, it is evident that there was no one in attendance, since it would have become quickly apparent that the crates contained too much water and that at least one animal was having difficulty breathing. The exhibits also indicate that it is a common practice to shift animals' positions to prevent cramping of muscles during long trips. This procedure certainly was not followed during the subject voyage. In Respondent's submission of August 29, 1979 [FN6] she claims that two of the dolphins died at the Mystic Aquarium because the NMFS agents did not allow them to rest at the airport, but instead took them directly to the Aquarium, which tired them further. In fact, it appears that if the NMFS and the group from the Aquarium had not arrived, the excess water might not have been removed from the crates, the animals' positions would not have been shifted, and none would have survived the rest of the trip to the Sunshine International Aquarium in Tokyo. The Mystic Aquarium personnel are trained professionals. Their judgments will not be second guessed, particularly on the characterization of an individual whose actions reflect a gross lack of knowledge of how to transport marine mammals.

ISSUE

The principal issue in this proceeding is whether the planned stopover of a few hours at Kennedy Airport in New York constitutes an "importation" within the meaning of the MMPA. The Respondent has been charged with violating section 216.12 (a) [FN7] and section 216.13 (a) [FN8] of the regulations which outline prohibited importation and prohibited uses, possession, transportation and sales, respectively, under the MMPA. The regulations do not contain a definition of "importation" as it is used specifically in those sections, but it has been held in regard to the MMPA, that "NOAA, which is charged with the administration of the Act, must be accorded first opportunity to interpret the meaning of 'importation'." [FN9] It is also generally recognized that the agency which has been delegated the responsibility of implementing an Act of Congress should be given great deference where there is a question of statutory construction. [FN10]

In the implementation of the MMPA, two agencies have been delegated the responsibility for its administration. The Department of Commerce, through its National Oceanic and Atmospheric Administration (NOAA), and the NMFS, was given responsibility under the Act for whales, porpoises, seals and sea lions. The Department of Interior, through its Fish and Wildlife Service has responsibility for polar bears, walrus, manatees, and dugongs. This joint authority is due to the two agencies' separate jurisdiction over land and water based species. When the MMPA was enacted in 1972 it was intended that a Department of Natural Resources would be formed and would take over the responsibility for the entire MMPA, but that reorganization did not occur.

Regulations promulgated by the Department of Interior do contain a definition of "importation" as used in the MMPA. For this purpose:

"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 tariff laws of the United States." [FN11]

Since both agencies are charged with enforcing the same statute, the desirability of having a consistent interpretation of its terms is readily apparent. It is not unreasonable to assume that the NMFS, by not promulgating its own definition intended to be bound by "import" as defined by the Fish and Wildlife Service, particularly since that definition is published in Title 50 of the Code of Federal Regulations where the regulations applicable to activities such as were conducted here are found.

It is also clear that the MMPA is but another example of Congress' intent to enact stringent protections for worldwide natural wildlife resources. [FN12] The Endangered Species Act of 1973 [FN13] represents a strong mandate to safeguard the existence and habitats of endangered and threatened species internationally, by restricting the taking of such species, regulating trade in them, and acquiring habitats for their survival. It is therefore pertinent to note that this Act contains a definition of "import" [FN14] which is almost identical to that promulgated by the Interior Department. Another indication of overall Congressional intent is contained in the Lacey Act [FN15] originally enacted in 1900; [FN16] which regulates the interstate commerce, importation, and sale of "any wildlife taken, transported, or sold in any manner in violation of any Act of Congress or regulation issued thereunder". [FN17] Given this recognition of the urgent need to protect wildlife it follows that a broad definition of the word "import" is appropriate to carry out the dictates of these statutes. And where no statutory definition exists it has repeatedly been held that to import means to bring into the country, [FN18] which is precisely what occurred here.

It is likewise irrelevant that the Respondent only landed the dolphins in New York as a stopover on their way to Toyko. The assertion that the animals were to be reloaded and transported out of the country at a later time does not alter the situation. The fact remains that they did enter the territorial limits of, and did land in a place subject to the jurisdiction of the United States. This entry was therefore an importation and a violation of the MMPA, because no permit had been secured by the Respondent to legally allow her to bring these marine mammals into the country.

The Respondent also asserts that in the course of making the transportation arrangements for the dolphins she was not informed of the strict prohibitions contained in the MMPA. Such a claim, even if true, is not a defense since it is a well recognized principle that ignorance of the law will not excuse violations of it. [FN19] Respondent had the duty to investigate the laws of the jurisdiction through which she was passing. It could not be assumed that the airlines whose services she contracted for would apprise her of all relevant statutory prohibitions. [FN20] As government counsel correctly points out, the Respondent had been employed by a firm involved in international commercial trading of birds and animals. It could therefore be assumed that a reasonable person in the Respondent's position would have been aware of the United States' role as a major international force in the field of marine mammal conservation, and would have been put on notice that restrictions might exist on the transportation of marine mammals within the jurisdiction of the United States. Thus, the question of actual knowledge of the law has no bearing on whether an illegal importation occurred. There is no requirement for a mens rea, actual knowledge or a specific intent under the charged provision of the MMPA or the other cited wildlife statutes. A general intent to do the acts involved is sufficient in these civil violations cases. [FN21]

In addition to the determination that an importation occurred, I further find that the circumstances surrounding the transport of the animals are particularly egregious in light of the Congressional and international goal of protecting and preserving such species. The crating of the dolphins, as described above, practically assured that they could not survive their journey to Tokyo, and as it appears that their health was not checked while in flight (since the excess amount of water in their containers would have been quickly noticed), a gross disregard for their safety is evident.

FINDINGS OF FACT

1. Respondent, Akiko Kawahara, is a "person" as defined in section 3(10) of the MMPA, 16 U.S.C. 1362 (10).

2. Respondent is and was subject to the jurisdiction of the United States, at all times pertinent hereto, and is therefore subject to the provisions of the MMPA.

3. On or about December 15, 1978 Respondent landed or caused to be landed four Commerson Dolphins at John F. Kennedy International Airport, in New York, U.S.A.

4. That landing constitutes an "importation" under the MMPA.

5. The Commerson Dolphin, a member of the order Cetacea, is a "marine mammal" as defined in section 3(5)(a) of the MMPA, 16 U.S.C. 1362(5)(a).

6. Such importation of marine mammals violates sections 101(a) and 102 (a) of the MMPA, 16 U.S.C. 1371(a) and 1372(a), and 50 C.F.R. 216.12 and 216.13, which make it illegal to import any marine mammal or marine mammal product into the United States or to use any place under the jurisdiction of the United States for any purpose connected with an unlawful importation.

7. Respondent did not obtain a valid permit or certificate of inclusion thereunder, as required by 50 C.F.R. 216.12, which would have made her actions lawful under the MMPA.

8. The record does not show any prior offenses by the Respondent under the MMPA.

9. In light of the $10,000.00 maximum penalty allowed under 105(a) of the MMPA, 16 U.S.C. 1375(a) a civil penalty of $7,500 reasonably describes the gravity of the offense.

10 The Respondent's asserted lack of knowledge of the law is not a defense to a violation of the MMPA.

CONCLUSIONS

This case presents a clear violation of the prohibitions in the Marine Mammal Protection Act against the importation of marine mammals. No mitigating circumstances have been presented in the record, in fact I find that this importation, the facts of which have not been disputed, constitutes a particularly aggravated violation. The care taken to ensure the safety of the animals appears to have been minimal, and though the actual taking of the dolphins was outside the jurisdiction of the United States, once transported within its jurisdiction they come within the protections of the MMPA. Those protections include a serious attempt to restrict international commercial traffic in such wildlife in an effort to preserve species in their natural habitats. Only when a permit is issued or an exemption exists may commercial activity be allowed. The goals of this statute must be complied with. [FN22]

ORDER

A civil penalty is assessed against, and the Respondent Akiko Kawahara is directed to pay to the Treasurer of the United States a civil penalty of $7,500. [FN23] In addition I recommend that forfeiture proceedings be instituted against the remaining live dolphin and any parts of the other 3 deceased animals that may have been retained.

SO ORDERED.

HUGH J. DOLAN

Administrative Law Judge

As provided in 50 C.F.R. 216.60(c) any appeal must be made within ten days of the receipt of this decisions.

FN1 Scientific name, Cephalorhynchus commersoni, these dolphins are white with black on the head, flippers, fin and tail, and are found in the waters around South America. This species of mammal is frequently also referred to as porpoise. In these proceedings both terms may be used interchangeably.

FN2 Mr. Kaplowitz withdrew as counsel several months before the hearing. Thereafter communications were transmitted to the Respondent directly and through the Japaness Consulate in New York.

FN3 Exhibit 9 documents the findings of Dr. Jay Hyman, a marine mammal veterinarian. Exhibit 12 is the statement of the Mystic Marinelife Aquarium by Stephen Spotte, the Vice President and Director, on behalf of himself, Dr. J. Lawrence Dunn, the staff veterinarian, and Dr. Charles W. Radcliffe, the General Curator. Both exhibits present similar conclusions.

FN4 See previous note.

FN5 Exhibit 12.

FN6 Included in the docket file.

FN7 50 CFR 216.12 (a) states "Except as otherwise provided in Subparts C and D of this Part 216, it is unlawful for any person to import any marine mammal or marine mammal product into the United States."

FN8 50 CFR 216.13 (a) 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 a prohibited taking or an unlawful importation of any marine mammal or marine mammal product."

FN9 Marine Wonderland & Animal Park, Ltd v. Kreps, 610 F.2d 947, 949 (D.C. Cir. 1979).

FN10 Id. See also, Udall v. Tallman, 380 U.S. 1, 16 (1965); Bowles v. Semonole Rock and Sand Co., 325 U.S. 410, 413-414 (1945).

FN11 50 C.F.R. 10.12.

FN12 "The MMPA addresses not only the killing of marine mammal by mericans, 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 statutes extra territorial effect even respecting U.S. citizens. See U.S. v. Mitchell, 553 F 2d 996 (1977).

FN13 16 U.S.C. 1531 et seq.

FN14 16 U.S.C. 1532(7).

FN15 18 U.S.C. 41 et seq.

FN16 Ch. 553, 31 Stat. 127.

FN17 18 U.S.C. 43(a)(1).

FN18 Canton R. Co. v. Rogan, Md., 340 U.S. 511, 515 (1950); Feathers of Wild Birds v. U.S., 267 Fed. 964, 967 (1920).

FN19 United States v. International Minerals and Chemical Corp., 402 U.S. 558 (1971); United States v. Jonas Brothers of Seattle, Inc., 368 F. Supp. 783 (1974)

FN20 This proceeding does not address the responsibility of the airline which effected the transport and entry since no charge was made against it.

FN21 See also Newell 2 Ocean Resources and Wildlife Decisions ES1074 (1979)

FN22 For a more detailed discussion of the effect of international agreements and Customs Laws on the air transport of marine mammals into U.S. Territory see Shawver et. al. ___ Ocean Resources and Wildlife Decisions ___ decided this date.

FN23 In this proceeding the importation of the four dolphins has been treated as a single violation.

U.S. Department of Commerce

National Oceanic and Atmospheric Administration