The MMPA, U.S. Endangered Species Protection
Marine Mammal Protection Act Protects Whales, Dolphins, and Seals
Nov 14, 2009
With oil spills, pollution, illegal hunting, unintended bycatch, naval sonar, and an assortment of other harms facing marine mammals, the Marine Mammal Protection Act serves as America's contribution to cetacean and pinniped salvation. In short, it is America's best defense against the killing of whales, dolphins, porpoises, sea lions, seals, and the like. But with a number of marine mammal species disappearing from U.S. waters, is greater or more updated legislation necessary?
The Marine Mammal Protection Act of 1972
To propose new solutions for the preservation of America's endangered marine species, one must first understand America's current legislation — how it has succeeded and how it has failed. No other U.S. law does more for marine mammals than the Marine Mammal Protection Act of 1972 (MMPA).
The MMPA, Chapter 28 of the United States Code, Sections 1361 et seq., is the controlling legislation governing marine mammal conservation. Passed in 1972, the MMPA is a testament to Congress and its recognition of the value of preserving its waters' depleted cetacean (the order comprised of whales, dolphins, and porpoises) and pinniped (the order comprised of fin-footed mammals, such as seals and sea lions) populations. Specifically, the MMPA protects “those animals physically structured to survive in the marine environment, including sea otters, whales, dolphins, and manatees, or those animals, such as polar bears, which primarily inhabit the marine environment,” according to Natalie Barefoot-Watambwa's University of Miami Law Review article, "Who Is Encroaching Whom? The Balance Between Our Naval Security Needs and the Environment: The 2004 RRPI Provisions as a Response to Encroachment Concerns."
The MMPA's objectives are statutorily prescribed as follows:
"(1) certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities;
(2) such species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population. Further measures should be immediately taken to replenish any species or population stock which has already diminished below that population. In particular, efforts should be made to protect essential habitats, including the rookeries, mating grounds, and areas of similar significance for each species of marine mammal from the adverse effect of man’s actions." 16 U.S.C. §§ 1361(1)-(2).
The MMPA mainly enforces marine mammal protection by making it unlawful “for any person subject to the jurisdiction of the United States or any vessel or other conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas.” 16 U.S.C. § 1372(a)(1). The word "take" has several meanings, defined as “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C. § 1362(13). Additional federal legislation increases the definition of "take" to include “the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal.” 50 C.F.R. § 216.3 (2006).
MMPA Penalties and Enforcement — Are They Insufficient to Save Whales and Dolphins?
What is a fair penalty for one who willfully slaughters a whale? What punishment suits the fur trader who skins alive a baby seal for its precious white pelt?
Unfortunately, the MMPA gives slight value to the lives of these animals. The Act punishes intentional and negligent takings and criminalizes the former, per United States v. Hayashi, 22 F.3d 859 (9th Cir. 1993) (as amended on April 26, 1994). Those who kill a marine mammal may be fined up to $10,000, a penalty that can be reduced upon a showing of good cause. 16 U.S.C. § 1375(a)(1). Criminal defendants face up to a year in jail and fines up to $20,000 for each taking.
Additionally, many exceptions to enforcement exist. These include: Native Americans, Eskimos, and Aleuts who take for subsistence or to create and sell native handicraft; commercial fisherman who take mammals as unintended bycatch; those with government permits; those who take in self-defense or to preserve human life; and those who attempt to save marine mammals from entanglement in fishing nets.
Given the constant dangers marine mammals face from oil drilling, commercial fishing, pollution, ghost nets, and naval sonar, perhaps it is time the MMPA receives an update. Certainly, stricter penalties, rewards for reporting, and improved enforcement methods are necessary for criminal takings. For negligent takings, fines may be sufficient, as long as they are enforced. A slap on the wrist does little to deter repetition of the negligence.
As for industries that constantly come into contact with marine mammals and often unintentionally kill them (e.g., oil spills from drilling facilities, commercial fishing net entanglement, harassment by whale watching tours, dolphin feeding boats, or swimming with dolphins, etc.), many employed by these industries likely do not want to harm marine life. Yet, they have their jobs to do. Thus, technological advancement and better safety precautions designed to limit causes of marine mammal death should be encouraged.
 |
 |
 |
 |
 |
