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Case 1:13-cv-03241-AT Document 1 Filed 09/30/13 Page 60 of 64137. The MMPA authorizes the Secretary to issue permits for theimportation of marine mammals for public display if issuing the permit complieswith all applicable statutory and regulatory provisions. 16 U.S.C. §§1371(a)(1),1374. The proposed Georgia Aquarium permit complies with all applicablestatutory and regulatory provisions. Defendants’ decision to deny the permit whenthe applicable statutory and regulatory provisions are met violates the MMPA.Defendants’ claim that granting the import permit for already collected whales willlikely result in the collection of additional beluga whales in violation of 50 C.F.R.§216.34(a)(7) violates the MMPA and the APA because is contrary to theprovisions of the MMPA allowing the collection and/or importation of marinemammals for public display, illegally applies the MMPA to sovereign nations, andhas no foundation in fact or law. Defendants’ action is arbitrary, capricious, andnot in accordance with law.THIRD CLAIM FOR RELIEF(Violation of the MMPA and APARegarding Importation of Five Beluga Whales)138. Plaintiff realleges, as if fully set forth herein, each and everyallegation contained in paragraphs 1 through 137.60
Case 1:13-cv-03241-AT Document 1 Filed 09/30/13 Page 61 of 64139. The MMPA and its implementing regulations prohibit the import ofmarine mammals that are less than eight months old or nursing at the time oftaking, whichever occurs later. 16 U.S.C. §1372(b)(2), 50 C.F.R. §216.12(c).140. Defendants’ permit decision asserts five of the 18 whales proposed forimport were estimated to be a minimum of 1.5 years of age at the time ofcollection. The permit decision further asserts that beluga whales may nurse fortwo years or longer and, therefore, “[a]t 1.5 years of age, beluga whale calves arelikely not independent from their mothers.” Therefore, Defendants concluded thatgranting the permit application would violate 16 U.S.C. §1372(b)(2) and 50 C.F.R.§216.12(c).141. The stated ages of the whales at the time of capture are estimates. 1.5years is the low end of the estimate. An accurate determination of age requires theintrusive act of pulling a tooth to examine growth layers, much as a tree is aged byexamining growth rings.142. For nursing to occur, there must be a mother-calf pair and a lactatingfemale. No mother-calf pairs were collected. No lactating female was collected.143. At the time of collection and again after collection, a veterinarian orequally trained animal care specialist examined the animals and confirmed thepresence of no lactating female and no nursing calf.61
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