The tone of yesterday’s hearing on the question of whether the federal government erred in its decision to deny a permit to the Georgia Aquarium to import 18 wild-caught beluga whales was “educated”. As counsel for both parties, the Georgia Aquarium and the Department of Justice on behalf of the National Marine Fisheries Service (NMFS), and intervenors Animal Welfare Institute, Whale and Dolphin Conservation and Cetacean Society International, made their cases in 45-minute arguments, Federal District Court Judge Amy Totenberg, after congratulating all participants on the quality of the briefs, demonstrated that she had identified what she considered lingering questions, as she honed aspects of the arguments that would be important in her determination.
The Georgia Aquarium opened its strongly-worded argument by claiming that NMFS’ decision, in denying the permit, was arbitrary and capricious and not in accordance with law by, in a “feast of failures,” having invented new standards in makings its determination, having manipulated data, which it suggested amounted to “cooking the books,” and having “changed its mind” without explanation about the issuance of the permit. The Georgia Aquarium added the claim that NMFS, in its decision, was amending the Marine Mammal Protection Act (MMPA) by “extraterritorial application” of another country’s laws.
In a nutshell, the Georgia Aquarium sounded as “whiny” as a child on a school playground, claiming that it wasn’t picked for the winning team.
Much of each Party’s time was spent responding to Judge Totenberg’s questions about data and how it was used by NMFS in its determination. The Georgia Aquarium argued that NMFS had erred by not considering the Potential Biological Removal (PBR) Level, which is defined as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. It wondered aloud that if NMFS did not use PBR as its “standard” in making its determination, then what standard it did use and welcomed being “thrown into a briar patch” discussion of standards. Judge Totenberg observed that this “if not this, what” approach was a Draconian framing of the question and recognized that the PBR does not have the status of the “sole litmus test” that the Georgia Aquarium seemed to be “edging toward.” Judge Totenberg observed that the PBR is one of several tools used by the Agency and noted that, in contrast to the Georgia Aquarium’s assertion, NMFS had, in fact, considered PBR.
NMFS responded by recounting data that showed that the PBR had, in fact, been exceeded, but urged the Judge not to make her determination upon this one finding, because there was other evidence that supported its decision to deny the permit. NMFS had found, for instance, evidence of human-caused beluga mortalities due to subsistence hunting in the Sakhalin and Shantar Bays, bycatch during fishing operations, and the live capture process itself that were not properly taken into account by the Georgia Aquarium’s application. It also pointed to significant uncertainty in the data that constrained the ability to develop a meaningful trend over the twenty year time period that it evaluated. Further, NMFS stated that the PBR is not something that NMFS normally uses in reviewing permit applications but is, instead, a quantity that the Agency is directed to prepare for evaluation of United States stocks of marine mammals.
As to whether the Agency had changed its mind, Justice recounted that there were many different levels within the Agency involved in reviewing the permit applications and the significant comments that were provided by the public during the comment period, and that the Georgia Aquarium is in error in suggesting that there was a “mind” to have been “changed” until the final permit decision.
As to making its decision based upon other nation’s laws and whether this amounted to amending the MMPA, Justice answered easily that it was the act of “import” that was under consideration in light of standards that must be applied under U.S. law, but reiterated that the actions of other entities, in this case a Russian beluga-capturing operation, and whether those actions would place beluga populations at risk, were issues being asked and answered.
The technical nature of the data is beyond the scope of this writing because, frankly, I do not understand it all. But I will rest easily knowing that the decision will be made by a judge who will not fall for assertions of “book-cooking” and “bobbing and weaving,” but will make her decision on the basis of the record that she noted was argued well and long by both sides.
Or at least one.
Judge Totenberg could render her decision in as little as two months.