The Marine Mammal Protection Act at Fifty
| Publication year | 2022 |
| Author | Keith R. Solar |
AUTHORS1
Keith R. Solar
Lauren R. Presser
Much has happened since 1972. That year, inflation in the United States was 3.27%, the average cost of a new home was $27,550, a new Ford Pinto cost $2,780, the average income per year was $11,800, the average cost of a gallon of gas was 55 cents, a first-class stamp cost eight cents, and the year-end close of the Dow Jones Industrial Average was 1020, which was the first time the Dow ever had closed above 1000. In entertainment, the French Connection won Best Picture, and the Godfather premiered. On the world front, Britain took over direct rule of Northern Ireland, 11 Israeli athletes were kidnapped and murdered at the Munich Olympics, President Nixon traveled to China, NASA officially launched the space shuttle program, and five White House operatives were arrested for burglarizing the Democratic National Committee offices at the Watergate Hotel.
Also in 1972, in response to public outcry and recognizing that certain species of marine mammals were in danger from human activity, Congress took steps to prevent further depletion or extinction of these animals by passing the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq. Congress adopted the MMPA with the goals of preventing marine mammal species and stocks from diminishing to the point that they no longer function as a significant part of their ecosystems, and of restoring diminished species and stocks to their optimum sustainable populations.2
Marine mammals and humans frequently compete over our shared use of the ocean. As a result, daily human activities, including fishing operations, shipping lines, and recreational hobbies, can pose a threat to the life and food sources of marine mammals. Moreover, commercial fisherman and marine mammals often compete with humans for the same resources or foods, resulting in increased regulation of commercial fishing.
The MMPA's regulation at times has become a complicated, controversial issue. State, federal, and international considerations have caused the MMPA ideals to be balanced against the needs of domestic, commercial fishermen. A similar balancing act has emerged with respect to national security concerns.
As with changes in society generally, much has happened with the MMPA since 1972. As the MMPA turns 50 years old, we examine its progress, the challenges it has faced, and its path forward.
LEGISLATIVE HISTORY
The MMPA is possibly one of the most comprehensive marine mammal conservation and management pieces of legislation in the world. Designed to repair "man's impact upon marine mammals [which] has ranged from what might be termed malign neglect to virtual genocide,"3 the Act governs all harassing,
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catching, and killing of marine mammals by U.S. citizens or within U.S. jurisdiction.4
Initially, in passing the MMPA, Congress focused on the ecological impacts of the whaling industry. In discussing the background and need for new legislation, Senator Ernest Hollings of South Carolina noted:
[T]he committee has learned that man's dealings with marine mammals have in many areas resulted in over utilization of this precious natural resource. Many of the great whales which once populated the oceans have now dwindled to the edge of extinction and although they have been placed on the U.S. endangered species list, are still being hunted by other nations . . . . The commercial hunting of whales has reduced these great mammals to the point that many may never be able to return to their original population size and balance in nature.5
The MMPA's purpose is to protect marine mammal species of "great international significance, esthetic and recreational as well as economic."6 The species included under the MMPA are whales, dolphins, porpoises, seals, sea lions, walruses, sea otters, manatees, dugongs, and polar bears.7 The U.S. Departments of Commerce and Interior enforce the MMPA.
The MMPA has spawned further legislation such as the Dolphin Protection Consumer Information Act ("DPCIA"), 16 U.S.C. § 1385 et seq. Essentially an amendment to the MMPA, the DPCIA similarly has been a contentious subject over the past 30 years.
As part of the MMPA's framework, in the interest of establishing a broad protection for marine mammals, and to achieve "optimum sustainable population[s]" of marine mammals, Congress established a moratorium on "importation and taking."8 "The term 'take' means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal."9 The Congressional purpose for the moratorium was to ensure that "incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate."10
However, significant exceptions to the prohibition on "taking" have been imbedded into the fabric of the MMPA. Originally, the MMPA gave the National Oceanic and Atmospheric Administration ("NOAA") the authority to "issue permits which authorize the taking or importation of any marine mammal,"11 which included certain exemptions for incidental takings of marine mammals in the commercial fishing industry,12 taking and importation for scientific research purposes,13 public display,14 enhancing the recovery of a marine mammal population,15 and the importation of polar bear parts taken from sport hunts in Canada.16 Permits are allowed on the basis of the best scientific evidence available, in consultation with the Marine Mammal Commission, when "the take would not disadvantage a specific marine mammal population's distribution, abundance, breeding habits, and times and lines of migratory movements of such marine mammals."17
In 1981, Congress amended the MMPA to simplify the procedure for "the incidental, but not intentional, taking . . . of small numbers of marine mammals of a species or population stock" for commercial fishing operations.18 This exemption may be issued for periods of five years, if NOAA finds the total take will "have a negligible impact on the stock"19 and may not be issued for populations designated as "depleted" under the MMPA.20
FURTHER AMENDMENTS INCREASE FOCUS ON YELLOWFIN TUNA
By the late 1980s, more was becoming known about how fisheries affected marine mammals. Congress began analyzing potential amendments to the MMPA to obtain sufficient information "to improve the overall management and protection of marine mammal populations" and to "make determinations about the status of certain marine mammal populations to determine whether they [were] depleted."21
Specifically, the proposed amendments reflected Congress' increased focus on the yellowfin tuna industry in the eastern tropical Pacific Ocean ("ETP").22 Since the 1960s, "purse seining [had] been an effective method of catching yellowfin tuna in the [ETP]." Unlike tuna in the rest of the world's oceans and for reasons still not completely known, yellowfin tuna in the ETP swam beneath schools of porpoises or dolphins.23 Therefore, fishermen learned to encircle schools of dolphins with purse seine nets, to catch schools of yellowfin tuna swimming below the dolphins.24
Unfortunately, this fishing practice resulted in substantial dolphin mortalities. In the 1970s, approximately 200,000 to 300,000 dolphins were killed annually during tuna purse seine operations, despite fishing crews' efforts to release encircled dolphins.25 In the 1960s and early 1970s, the U.S. fishing fleets were estimated to be responsible for more than eighty percent of dolphin deaths in the ETP.26
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By 1980, the National Marine Fisheries Service ("NMFS") issued a general permit that, among other items, imposed observer requirements and regulations regarding fishing techniques.27 In that same year, U.S. fleets successfully decreased dolphin mortality rates from hundreds of thousands to 15,305.28
However, while the U.S. fleet decreased mortality levels, the number of vessels in the U.S. tuna purse seine fleet had substantially declined to the point where foreign fleets, operating without the restraints of the MMPA, outnumbered the U.S. fleet.29 In 1986, the U.S. fleet had decreased estimated dolphin mortalities to 20,692. However, foreign fleets were estimated to have caused 112,482 dolphin deaths, or almost six times the number estimated at that time for the U.S. fleet.30
In November 1988, President George H.W. Bush signed MMPA amendments into law establishing an exemption program for commercial fisheries and a program to gather further information regarding the impact of commercial fishing on marine mammal stocks.31 Specifically, the amendments required the commercial fishing industry to participate in the information gathering program by having on-board observers, retaining log books, and reporting interactions with marine mammals in exchange for an exemption from incidental take regulations.32
In an attempt to balance the interests of the commercial fishing industry with the protection of marine mammals from stock depletion, Congress set an "immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate . . ."33 However, the terms "immediate goal" and "insignificant levels" were undefined and merely aspirational goals of the legislation, without any binding effect.
The 1988 MMPA amendments also created a skipper performance standard and training program, an observer program, a statutory prohibition on sundown sets, and a prohibition on the use of certain explosives while encircling dolphins.34 Further, to combat growing dolphin mortality caused by foreign fleets, Congress took a more creative approach—regulating imports. The 1988 amendments required foreign nations exporting tuna into the United States to provide...
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