Marine Mammals Protection Act (1972)

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Marine Mammals Protection Act (1972)

The Marine Mammals Protection Act (MMPA) was initially passed by Congress in 1972 and is the most comprehensive federal law aimed at the protection of marine mammals. The MMPA prohibits the taking (i.e., harassing, hunting , capturing, or killing, or attempting to harass, hunt, capture, or kill) on the high seas of any marine mammal by persons or vessels subject to the jurisdiction of the United States. It also prohibits the taking of marine mammals in waters or on land subject to United States jurisdiction and the importation into the United States of marine mammals, parts thereof, or products made from such animals. The MMPA provides that civil and criminal penalties apply to illegal takings .

The MMPA specifically charges the National Marine Fisheries Service (NMFS) with responsibility for the protection and conservation of marine mammals. The NMFS is given statutory authority to grant or deny permits to take whales , dolphins , and other mammals from the oceans.

The original legislation established "a moratorium on the taking of marine mammals and marine mammal products...during which time no permit may be issued for the taking of any marine mammal and no marine mammal may be imported into the United States." Four types of exceptions allowed for limited numbers of marine mammals to be taken: (1) animals taken for scientific review and public display, after a specified review process; (2) marine mammals taken incidentally to commercial fishing operations prior to October 21, 1974; (3) animals taken by Native Americans and Inuit Eskimos for subsistence or for the production of traditional crafts or tools; and (4) animals taken under a temporary exemption granted to persons who could demonstrate economic hardship as a result of MMPA (this exemption was to last for no more than a year and was to be eliminated in 1974). MMPA also sought specifically to reduce the number of marine mammals killed in purse-seine or drift net operations by the commercial tuna industry.

The language used in the legislation is particularly notable in that it makes clear that the MMPA is intended to protect marine mammals and their supporting ecosystem , rather than to maintain or increase commercial harvests: "[T]he primary objective in management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the optimum carrying capacity of the habitat."

All regulations governing the taking of marine mammals must take these considerations into account. Permits require a full public hearing process with the opportunity for judicial review for both the applicant and any person opposed to the permit. No permits may be issued for the taking or importation of a pregnant or nursing female, for taking in an inhumane manner, or for taking animals on the endangered species list.

Subsidiary legislation and several court decisions have modified, upheld, and extended the original MMPA: Globe Fur Dyeing Corporation v. United States upheld the constitutionality of the statutory prohibition of the killing of marine mammals less than eight months of age or while still nursing.

In Committee for Humane Legislation v. Richardson, the District of Columbia Court of Appeals ruled that the NMFS had violated MMPA by permitting tuna fishermen to use the purse-seine or drift net method for catching yellowfin tuna, which resulted in the drowning of hundreds of thousands of porpoises.

Under the influence of the Reagan Administration, MMPA was amended in 1981 specifically to allow this type of fishing, provided that the fishermen employed "the best marine mammal safety techniques and equipment that are economically and technologically practicable." The Secretaries of Commerce and the Interior were empowered to authorize the taking of small numbers of marine mammals, provided that the species or population stocks of the animals involved were not already depleted and that either Secretary found that the total of such taking would have a negligible impact.

The 1984 reauthorization of MMPA continued the tuna industry's general permit to kill incidentally up to 20,500 porpoises per year, but provided special protection for two threatened species. The new legislation also required that yellowfin tuna could only be imported from countries that have rules at least as protective of porpoises as those of the United States.

In Jones v. Gordon (1985), a federal district court in Alaska ruled in effect that the National Environmental Policy Act provided regulations which were applicable to the MMPA permitting procedure. Significantly, this decision made an environmental impact statement mandatory prior to the granting of a permit.

Presumably owing to the educational, organizing, and lobbying efforts of environmental groups and the resulting public outcry, the MMPA was amended in 1988 to provide a three-year suspension of the "incidental take" permits, so that more ecologically responsible standards could be developed. Subsequently, Congress decided to prohibit the drift netting method as of the 1990 season.

In 1994, the MMPA was amended to include more concrete definitions of harassment levels and grouped them as level A harassment (potential to hurt a wild marine mammal) and level B harassment (potential to disrupt their environment or biology). The 1994 amendments also constructed new restrictions of photography permits and states under harassment level B that scientific research must limit its influence on the marine mammals being studied.

[Lawrence J. Biskowski ]