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Case 1:13-cv-03241-AT Document 1 Filed 09/30/13 Page 8 of 6420. Notwithstanding this exemption, the MMPA makes it unlawful toimport into the United States any marine mammal if that mammal was: (a)pregnant at the time of taking; (b) nursing at the time of taking, or less than eightmonths old, whichever is later; (c) taken from a stock designated as depleted(beluga whales in Russia are not so designated); or (d) taken in an inhumanemanner. 16 U.S.C. §1372(b). It is also unlawful to import any marine mammaltaken in violation of the MMPA or taken in another country in violation of the lawsof that country. 16 U.S.C. §1372(c)(1).21. Permits for the taking or importation of marine mammals for publicdisplay are issued pursuant to 16 U.S.C. §1374. That section of law provides thatpermits for the taking or importation of marine mammals shall be consistent withany applicable regulations established under 16 U.S.C. §1373 and shall specify:(a) the methods of capture, supervision, care, and transportation which must beobserved pursuant to a taking or importation; (b) the number and kind of animalsto be taken or imported; (c) the location from which the animals may be taken orimported and the manner in which they may be taken, which manner must behumane; (d) the duration of the permit; and (e) other terms and conditions deemedappropriate. 16 U.S.C. §§1374(b) and 1374(c)(1).8
Case 1:13-cv-03241-AT Document 1 Filed 09/30/13 Page 9 of 6422. Persons eligible to receive a permit to take or import a marinemammal for public display must (a) offer a program for education or conservationpurposes that is based on professional recognized standards of the public displaycommunity; (b) be registered or hold a license issued under 7 U.S.C. §2131, etseq.; and (c) maintain facilities that are open to the public on a regularly scheduledbasis such that access is not limited except by the charging of an admission fee. 16U.S.C. §1374(c)(2)(A).23. The MMPA vests authority over certain marine mammals with theSecretary of Commerce and for other marine mammals with the Secretary of theInterior. Authority over the order Cetacea is given to the Secretary of Commerce.16 U.S.C. §1362(12)(A). Beluga whales belong to the order Cetacea.24. The Secretary of Commerce (“Secretary”) has promulgatedregulations implementing the MMPA provisions regarding the taking or import ofmarine mammals for public display and certain other purposes. Those regulationsprovide that before issuing a permit “the applicant must demonstrate” that (a) theproposed activity “is humane and does not present any unnecessary risks to thehealth and welfare” of the animals; (b) the proposed activity is consistent withrestrictions imposed by the Secretary which are set forth in 50 C.F.R. §216.35;(c) if the proposed activity involves species protected under the Endangered9
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