United States v. David Hayashi
1994 WL 145273, 22 F.3d 859 (1994)
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Rule of Law:
The Marine Mammal Protection Act (MMPA) and its implementing regulations do not criminalize reasonable actions taken by fishermen to deter marine mammals from interfering with fishing lines, provided these actions do not result in a direct and significant disruption of the marine mammal's normal, life-sustaining activities.
Facts:
- On the morning of January 24, 1991, David Hayashi, a part-time commercial fisherman, and his son were fishing for Ahi off the coast of Waianae, Hawaii.
- A group of four porpoises began to eat tuna from Hayashi's and his son's fishing lines.
- Hayashi fired two rifle shots into the water behind the porpoises, hoping the impact of the bullets hitting the water would scare them away from their catch.
- The shots did not hit the porpoises, but when the Hayashis reeled in their lines, they discovered that a porpoise had eaten a part of at least one tuna.
Procedural Posture:
- A state enforcement officer reported to the National Marine Fisheries Service (NMFS) that occupants of Hayashi’s vessel had fired at dolphins.
- In February 1991, NMFS agents interviewed David Hayashi and his son.
- An information was filed on April 22, 1991, charging Hayashi with knowingly taking a marine mammal in violation of the MMPA.
- The parties consented to proceed before a magistrate judge, who denied Hayashi’s motion to dismiss the information for unconstitutional vagueness.
- In July 1991, the magistrate judge tried and convicted Hayashi on stipulated facts.
- Hayashi appealed his conviction to the United States District Court for the District of Hawaii, renewing his vagueness argument and raising a claim of insufficient evidence.
- In December 1991, the district court affirmed the conviction by written order.
- Hayashi appealed the district court's affirmance to the United States Court of Appeals for the Ninth Circuit (appellant).
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Issue:
Does a fisherman's act of firing a rifle into the water behind porpoises to deter them from eating fish off his line constitute a "knowing taking" by "harassment" under the Marine Mammal Protection Act (MMPA) and its implementing regulations?
Opinions:
Majority - Reinhardt, Circuit Judge
No, a fisherman's act of firing a rifle into the water near porpoises to deter them from eating fish off his line does not constitute a "knowing taking" by "harassment" under the MMPA and its regulations, as such actions are reasonable and do not result in severe disruption of the mammal's normal routine. The court determined that the term "harass" in the MMPA, and "disturbing or molesting" in the applicable regulation (50 C.F.R. § 216.3), must be interpreted consistently with other statutory terms like "hunt," "capture," and "kill." These terms signify "direct and significant intrusions upon the normal, life-sustaining activities of a marine mammal." Hayashi's actions, firing shots into the water behind the porpoises to deter them from eating off his lines (an abnormal porpoise activity), were not a direct, serious disruption of their customary pursuits. The court also noted that the lower courts erred by applying the incorrect regulatory definition of "harass" (from the Endangered Species Act, 50 C.F.R. § 17.3) and by misunderstanding the MMPA's "knowing" mens rea requirement for criminal liability, which explicitly rules out negligence. Furthermore, recent NMFS regulatory amendments proscribing the "feeding" of marine mammals (including those from baited hooks) aim to prevent the very behavior Hayashi sought to deter, suggesting that reasonable efforts to discourage such behavior should not be criminalized. Given the lack of direct physical impact and the deterrent purpose, the evidence was insufficient to support a criminal conviction under the MMPA's correct interpretation.
Dissenting - James R. Browning, Circuit Judge
Yes, Hayashi's act of deliberately firing his rifle near feeding dolphins to frighten them off does constitute a "taking" by "harassment" under the Marine Mammal Protection Act. The dissent argued that the majority's interpretation improperly restricts the broad intent of the MMPA. Congress intended the term "take" to be defined expansively, including "harass," to provide ample scope for the regulatory scheme and allow for flexibility through specific exceptions and permits. Legislative history explicitly calls for "harass" to be "construed sufficiently broadly" to encompass acts like "intentional pursuit... or use of acoustic deterrence devices." Examples in the relevant regulation, such as "restraint or detention, no matter how temporary," and "tagging," indicate that less intrusive acts than hunting, capturing, or killing are prohibited forms of "taking." The dissent also pointed to the existence of permits issued for activities considered "harassment" but no more intrusive than Hayashi's conduct, demonstrating the agency's broad understanding of the term. Critically, the commercial fishermen exemption, which allows "intentional take" to protect catch but without causing death or injury to a marine mammal, logically proves that even non-injurious deterrent acts are considered "taking" under the Act. The majority's distinction between "normal" and "abnormal" mammal behavior is unworkable and undermines the Act's primary purpose of protecting marine mammals from human fishing activity. The dissent concluded that Congress intended the Secretary, not the courts, to strike the balance between marine mammal protection and economic interests through a system of regulated exemptions.
Analysis:
This case significantly narrows the interpretation of "harass" under the Marine Mammal Protection Act, limiting its scope to direct and significant intrusions on a marine mammal's normal, life-sustaining activities. It clarifies the specific mens rea (knowledge) required for criminal penalties under the MMPA, distinguishing it from mere negligence. The ruling creates a precedent that allows private fishermen to take reasonable non-injurious deterrent steps without criminal liability, potentially influencing future enforcement and prosecution decisions related to human-wildlife conflicts. It also underscores the importance of courts applying the correct statutory and regulatory definitions in criminal cases, particularly when multiple agencies or statutes define similar terms differently.
