United States v. David Hayashi

5 F.3d 1278 UNITED STATES of America, Plaintiff-Appellee, v. David HAYASHI, Defendant-Appellant. No. 92-10044. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 6, 1992. Decided Sept. 27, 1993. Alexander Silvert, Asst. Federal Public Defender, Honolulu, HI, for defendant-appellant. Edward H. Kubo, Jr., Asst. U.S. Atty., Honolulu, HI, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before BROWNING, NORRIS, and REINHARDT, Circuit Judges. REINHARDT, Circuit Judge: 1 David Hayashi appeals his conviction of taking a marine mammal in violation of 16 U.S.C. Sec. 1372 (a)(2)(A). We hold that the Marine Mammal Protection Act (MMPA) and the regulations implementing the act do not make it a crime to take reasonable steps to deter porpoises from eating fish or bait off a fisherman's line. Therefore, we conclude that insufficient evidence supported Hayashi's conviction, and we reverse. 2 * On the morning of January 24, 1991, 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 the tuna off Hayashi's and his son's lines. Hoping…

David Hayashi appeals his conviction of taking a marine mammal in violation of 16 U.S.C. § 1372 (a)(2)(A). We hold that the Marine Mammal Protection Act (MMPA) and the regulations implementing the act do not make it a crime to take reasonable steps to deter porpoises from eating fish or bait off a fisherman’s line. Therefore, we conclude that insufficient evidence supported Haya-shi’s conviction, and we reverse.

I

On the morning of January 24,1991, Haya-shi, 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 the tuna off Hayashi’s and his son’s lines. Hoping the impact of the bullets hitting the water would scare the porpoises away from their catch, Hayashi fired two rifle shots into the water behind the porpoises. The shots did not hit the porpoises. When the Hayashis reeled in their lines,'they discovered that a porpoise had in fact eaten a part of at least one of the tuna.

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 Hayashi and his son, taking…

dissenting.

The majority unjustifiably restricts the breadth of the Marine Mammal Protection Act to avoid subjecting Hayashi to a criminal prosecution the majority regards as unreasonable. The gloss imposed by the majority to limit the scope of “taking,” a key jurisdictional term in the Act, has no source in the language, structure or legislative history of the Act and derives little support from the various circumstances collected to sustain it. *1285 It ignores the structure and purpose of the Act and substantially weakens it as an instrument for effectuating the public policy determined by Congress.

I

Much more is at stake in defining the statutory term “taking” than Hayashi’s freedom to fire his rifle at dolphins to protect a tuna caught by his son. The meaning assigned to this term defines the authority of the Secretary of Interior and the Secretary of Commerce to regulate private and public activities affecting marine mammals. 1 The authority granted the Secretary by the Act to prohibit acts harmful to marine mammals and to develop and encourage means of ensuring their survival is keyed directly or indirectly to the concept of “taking.” A cramped construction of the term…