United States v. David Hayashi

Opinion by Judge REINHARDT; Dissent by Judge BROWNING.

Appeal from the United States District Court for the District of Hawaii, Alan C. Kay, District Judge, Presiding.

ORDER

The opinion and dissent filed on September 27, 1993, are amended as follows: [Editor’s Note: Amendments have been incorporated for purposes of publication].

With these amendments, a majority of the panel has voted to deny the appellee’s petition for rehearing.

An active judge made a sua sponte request to rehear the case en banc. The government also requested en banc rehearing in its response papers. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

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 *861 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…

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. 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 en *867 suring their survival is keyed directly or indirectly to the concept of “taking.” A cramped construction of the term…

22 F.3d 859 24 Envtl. L. Rep. 20 ,985 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. Order Amending Opinion on Denial of Rehearing and Rehearing En Banc April 26, 1994. Alexander Silvert, First Asst. Federal Public Defender, Honolulu, HI, for defendant-appellant. Edward H. Kubo, Jr., Asst. U.S. Atty., Honolulu, HI, for plaintiff-appellee. Before: BROWNING, NORRIS, and REINHARDT, Circuit Judges. 1 Opinion by Judge REINHARDT; Dissent by Judge BROWNING. 2 Appeal from the United States District Court for the District of Hawaii, Alan C. Kay, District Judge, Presiding. ORDER 3 The opinion and dissent filed on September 27, 1993, are amended as follows: 4 With these amendments, a majority of the panel has voted to deny the appellee's petition for rehearing. 5 An active judge made a sua sponte request to rehear the case en banc. The government also requested en banc rehearing in its response papers. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.…