ON MOTION FOR REHEARING

We grant the motion for rehearing and substitute the following opinion in its place.

The order granting the temporary injunction is affirmed. On appeal, several arguments are made that application of the Marine Mammal Protection Act, 16 U.S.C.A. §§ 1361-1380, requires reversal of *734the injunction. For example, appellant points to 16 U.S.C.A. § 1374 to argue that access to facilities covered by the act may not be limited or restricted other than by charging an admission fee. However, that argument, although raised as an affirmative defense, was not made to the trial court at the temporary injunction hearing nor was there any testimony to support such argument. Moreover, the record is not clear as to whether or not the act even applies to appellee’s facility. Therefore, our affirmance is without prejudice to appellant’s right to move to dissolve or modify the injunction.