Marine Mammal Protection Act (1972)

Marine Mammal Protection Act (1972)

Wendy Wagner

The Marine Mammal Protection Act of 1972 (P.L. 92–522, 86 Stat. 1027) is one of the first federal laws to protect animals for their own sake, rather than simply preventing extinction or keeping populations sustainable for harvesting. At the time the law was passed, there was a consensus in Congress that the act was needed to rectify the consequences of "man's impact upon marine mammals, which has ranged from what might be termed malign neglect to senseless slaughter." Because of competing visions of how vigorously marine mammals should be protected, however, Congress did not impose an absolute moratorium on the "taking" of marine mammals. Although the law prohibited the "harassing, catching and killing" of all "mammals which are physiologically adapted to the oceans," including whales, dolphins, seals, walruses, and manatees, it allowed for some exceptions. The most notable was allowing unintentional (or "incidental") takes of mammals from "nondepleted stocks" by commercial fishing operations, usually on the condition of obtaining a permit from the National Marine Fisheries Service (NMFS).

JUDICIAL REVIEW

The MMPA is solidly grounded in Congress's power to regulate interstate commerce, as stated in the Constitution. In 1984 in Balelo v. Baldrige, the commercial fishery industry challenged the constitutionality of the act under the Fourth Amendment, alleging it was an unconstitutional search and seizure because it required federal observers to be stationed aboard large fishing fleets to ensure compliance. The United States Court of Appeals for the Ninth Circuit rejected this constitutional challenge, holding that commercial fishing fleets were closely regulated and did not enjoy a protected privacy right.

Beyond their role in resolving constitutional challenges to the MMPA, the courts have played a major role in the evolution of the statute, which has been amended regularly (at least once every seven years). In 1988, for example, the U.S. Court of Appeals for the District of Columbia invalidated the NFMS program for permitting the "incidental takes" of marine mammals by commercial fisheries in Kokechik Fishermen's Association v. Secretary of Commerce. The court held that NMFS's program did not provide adequate assurance that marine mammal populations would be maintained at optimal levels. In response, Congress amended the MMPA to provide a more comprehensive system for identifying marine mammal populations that could tolerate "incidental takes" and those populations below optimal levels which could not tolerate losses. The courts have also played an important role in enforcing the act, which authorizes both the Commerce and Interior Departments to seek civil and criminal sanctions against persons taking a marine mammal in violation of the act.

In 1991 a dispute resolution panel of the General Agreement on Tariffs and Trade (GATT) determined that the MMPA violated an international trade agreement. The panel found that the U.S. ban on the importation of tuna from Mexico, imposed because Mexican fleets caught tuna in a way that harmed dolphins, was not a justified basis for restricting trade. Although the United States lost the dispute, it resolved its differences with Mexico diplomatically. Congress passed a second statute, modified later, which banned imports from countries that did not catch tuna in a dolphin-safe manner.

EFFECTIVENESS

The MMPA appears to have made a significant difference in protecting marine mammals. For example, after the United States banned the import of tuna caught in ways that harm dolphins, the incidental deaths of dolphins dropped nearly 80 percent worldwide. The MMPA is complemented by the Marine Protection, Research, and Sanctuaries Act, which preserves marine mammal habitat more directly. The Endangered Species Act also provides more aggressive protections for marine mammals that are endangered or threatened with extinction.

See also: Endangered Species Act; Fish and Wildlife Conservation Act of 1980.

BIBLIOGRAPHY

Bean, Michael J., and Melanie J. Rowland. The Evolution of National Wildlife Law, 3d ed. Westport, CN: Praeger, 1997.

INTERNET RESOURCES

The Marine Mammal Center. <http://www.tmmc.org/>.

National Oceanic And Atmospheric Administration. <http://www.nmfs.noaa.gov/prot_res/overview/mm.html>.

What Is Dolphin-Safe Tuna?

In the Eastern Tropical Pacific, tuna swim beneath schools of dolphin. During the 1950s, fishers began to encircle dolphin with nets to trap the tuna swimming below, killing thousands of dolphins in the process. Since 1991 the United States has allowed tuna to be sold with a label designating it "dolphin-safe" if nets were not intentionally set for dolphins as a means of catching the tuna. According to the National Marine Fisheries Service, this arrangement reduced dolphin deaths from hundreds of thousands to approximately 2,000 per year. In 2002, however, the regulations were relaxed so that tuna could be labeled dolphin-safe even if dolphins were encircled by the tuna nets, as long as an on-board observer certified that no dolphins were harmed or killed by the procedure. Environmental groups protested the change, arguing that the successes of the previous policy would be reversed. According to the Earth Island Institute, "The Bush administration's claim that chasing and netting of dolphins is 'safe' for dolphins is fraudulent and must be overturned by the courts."