Detailed Discussion of Dolphins Under the MMPA
- Jamie M. Woolsey
- Animal Legal & Historical Center
- Publish Date: 2002
- Place of Publication: Michigan State University College of Law
I. Introduction and History
Congress, realizing that dolphins as well as other species of marine mammals were in danger of becoming extinct, passed the Marine Mammal Protection Act ("MMPA" or "Act"). The MMPA expressed the congressional policy that marine mammals should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in their ecosystem. To accomplish this policy, Congress mandated certain measures be taken immediately to replenish any species or population stock that had already diminished. The most important of these measures is the prohibition against "taking" marine mammals, but it also includes a ban on the importation of marine mammals and marine mammal products into the country.
While the need to protect dolphins is simple in theory, in practice the MMPA is a complex statute that strikes a balance between protectionism and commercialism. Historically, one of the greatest threats to dolphins has been the method used by the commercial tuna fisheries both in the United States and foreign countries, namely purse seine nets. Though the MMPA has evolved through amendments and agency decisions that have sought to address this tuna fishing threat, other dangers have arisen. For example, feeding wild dolphins and "swim-with-dolphin" programs have become popular activities in certain parts of the United States. These activities have altered natural behaviors and made wild dolphins hopelessly dependent on contact with humans.
To understand the MMPA, it is useful to grasp the terms and definitions contained in the statute which have evolved over the past three decades. Through the interpretation of these key terms, this paper will provide an overview of the important components of the statute. Additionally, this analysis will discuss the provisions geared toward the protection of dolphins both in captivity and the wild and also examine the MMPA’s effectiveness. While dolphins are also protected by the Animal Welfare Act and the Endangered Species Act, the MMPA is the primary regulatory force protecting dolphins through domestic and international programs and, as such, this paper is limited in scope to the MMPA.
II. The Original MMPA
A. Background and Legislative History
The legislative background of the MMPA expresses Congress' deep concern for the mistreatment of marine mammals and the desire for increased protection.
"Recent history indicates that man’s impact upon marine mammals has ranged from what might be termed malign neglect to virtual genocide. These animals, including whales, porpoises, seals, sea otters, polar bears, manatees and others, have only rarely benefited from our interest; they have been shot, blown up, clubbed to death, run down by boats, poisoned, and exposed to a multitude of other indignities, all in the interests of profit or recreation, with little or no consideration of the potential impact of these activities on the animal populations involved." H. R. Rep. No. 707, 92nd Cong., 2d Sess. 1972, reprinted in 1972 U.S.C.C.A.N. 4144.
Congress sought the middle ground with the MMPA, recognizing that "man’s thumb is already on the balance of nature and that to remove it altogether might be far more cruel and damaging than would the effects of a responsible management program." Id. at 4152. The MMPA rejects the extreme ends of the animal welfare philosophy spectrum with one side arguing that the principle significance of marine mammals is their usefulness to humans and that any use is justifiable, with the opposite side arguing that animals be left alone altogether. Id. at 4145.
Congress specifically noted:
"Man has been involved with mammals of the sea since at least the beginning of recorded history, as a source of food, clothing, and even recreation. The dolphin was highly regarded in ancient Rome and there are even today parts of the world in which marine mammals are treated with reverence. With few exceptions, this is not the case in the ‘civilized world.’" Id. at 4147.
In the civilized world, there is the purse seine net, which was developed as a more efficient means of catching tuna and has proven equally deadly for dolphins. For unknown reasons, yellowfin tuna and dolphins swim together in the eastern Tropical Pacific ("ETP"), an area that extends from California to South America that covers roughly five to seven million square miles. Brower v. Daley, 93 F. Supp. 2d 1071 (N.D.C.A. 2000). Since dolphins are larger and more active on the ocean’s surface than tuna, yellowfin tuna can be found simply by searching for dolphins. Committee for Human Legislation v. Richardson, 414 F.Supp. 297 (D.D.C. 1976). Utilizing this fact, speedboats herd groups of dolphins into large purse seine nets. Id. The yellowfin tuna swim beneath the dolphins and both are trapped when the net is "pursed" around them. Id. Although most of the of the dolphins can escape by swimming from the top of the open net, some instead dive to the bottom of the net where their snouts become caught in the webbing. Id. Unable to surface and get air, the dolphins suffocate. Id. Others drown as a result of shock, physical injury, or the refusal to abandon the other dolphins that are entangled in the net. Id.
In 1971, Congress found that, intentional or not, 200 to 400 thousand dolphins per year were being killed as a consequence of commercial tuna fishing with purse seines. Id. at 4148. Commercial fisherman testified that they had gone to considerable lengths to permit dolphins to escape unharmed, occasionally jumping into the water to themselves untangle the trapped animals. Id. Hopeful of the newly developed techniques, the tuna industry represented to Congress that the excessive killings of dolphins would be stopped. Id. The House of Representatives took pains in consideration of the bill to see that the legitimate needs of the tuna industry were not ignored, while accepting the clear requirement that dolphins be given "every reasonable protection." Id.
B. The MMPA of 1972
The complexity of the MMPA is more easily understood through the four main components of the original act. In the simplest terms, the MMPA contains policy goals for marine mammal protection, a moratorium, exceptions to the moratorium, and penalties.
The policy declared in the MMPA included the following three findings:
- 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;
- 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 that has already diminished below that population.
- Marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem.
P.L. 92-522, 86 Stat. 1027. See also 16 U.S.C. § 1361, the MMPA as amended.
Congress sought to achieve these goals by establishing a moratorium on the taking and importation of marine mammals. 86 Stat. at 1029. However, the moratorium was and is still, not absolute. Exceptions to the moratorium are allowed through the issuance of permits, and may be granted for scientific research or public display. Id. The power to issue permits is relegated to the Secretary of Commerce and the Secretary of the Interior. The Secretary of Commerce, through the National Oceanic and Atmospheric Administration ("NOAA") is responsible for the management and the protection of whales, dolphins, porpoises, and seals under the MMPA. Id. The Secretary of the Interior is responsible for the remaining animals protected by the MMPA, namely walruses, sea otters, polar bears, and manatees. See 1972 U.S.C.C.A.N 4144, 4146. (The use of "Secretary" will refer to the Secretary of Commerce throughout this paper, unless otherwise noted.)
The MMPA encourages the public to participate fully in the agency decision-making process for permit applications. 86 Stat. at 1035, See also 1972 U.S.C.C.A.N. at 4151. The Secretary is required to publish notice in the Federal Register to invite comment by interested parties. Id. Under certain circumstances, the Secretary may grant an interested party the opportunity for a hearing. Id. To assist the Secretary with policy, the MMPA created a three-member panel called the Marine Mammal Commission. The Marine Mammal Commission is charged with monitoring the implementation of the MMPA, recommending policies to the two secretaries, and undertaking research as necessary. 86 Stat. 1030.
The MMPA of 1972 created a specific exemption to the moratorium for commercial fishing operations. Id. During the two-year period following the effective date of the MMPA, the taking of marine mammals incidental to commercial fishing operations was permitted, as long as the takings were done with techniques and equipment that produced the "least practicable hazard to marine mammals . . ." Id. Congress granted this special exemption because it was assured by representatives of the tuna industry that they had found solutions, through fishing gear modifications, to reduce dolphin mortality. 1972 U.S.C.C.A.N. at 4148.
In an attempt to qualify the exemption, however, Congress added the following language:
"In any event it shall be the immediate goal that the incidental kill or 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." Id.
This "zero mortality rate" goal caused a lot of confusion and debate in the years following enactment. In the amendments of 1994, over twenty years later, the issue is still addressing this issue.
A final exemption from the taking provision of the MMPA was created for Alaskan natives. 86 Stat. at 1031. Indians, Aleuts, or Eskimos who live on the North Pacific Ocean or the Artic Ocean may take marine mammals if the taking is done for subsistence purposes, or for the purposes of creating and selling authentic native articles of handcrafts and clothing. In each case, the MMPA requires that the taking not be done in a wasteful manner. Id. See also 16 U.S.C. § 1371(b)
See, e.g., Mary M. Sauer, Balancing Marine Mammal Protection Against Commercial Fishing: The Zero Mortality Goal, Quotas, and the Gulf Maine Harbor Porpoise, 45 Me. L. Rev. 419, (1993).
The MMPA of 1972 established both civil and criminal penalty provisions that are still in effect today. 16 U.S.C. § 1375. A person who violates any provision of the MMPA, including a permit or regulation, may be assessed a civil penalty of $10,000 for each violation. Id. at 1375(a)(1). A person who knowingly violates any provision of the MMPA may be charged criminally. Upon conviction, a person may be fined up to $20,000 for each violation, imprisoned for up to one year, or both. Id. at 1375(b).
Under section 1376, any vessel subject to the jurisdiction of the United States is also subject to seizure and forfeiture of its entire cargo if it is employed in the unlawful taking of any marine mammal. 16 U.S.C. § 1376(a). A vessel can also be assessed a civil penalty in the amount of $25,000 for any unlawful taking. 16 U.S.C. § 1376(b). To encourage the public’s participation in enforcing the MMPA, the Secretary of the Treasury is authorized under the Act to pay up to $2,500 to any person who furnishes information which leads to the conviction for a violation of the MMPA. 16 U.S.C. § 1376(c).
C. Amendments to the Marine Mammal Protection Act
The amendments in 1981 responded to the confusion over the definition and application of the zero mortality rate goal as it applied to commercial fishing operations. H.R. 97-228, reprinted at 1981 U.S.C.C.A.N. 1458. Congress began by stating that it did not intend to "shut down, or significantly curtail the activity of the tuna fleet." The amendments, therefore, retained the goal of reducing the incidental taking of marine mammals, but modified it. The goal of reducing takes would be satisfied by continuing to use the "best marine mammal safety techniques and equipment that are economically and technologically practical." Id. at 1467.
The modification of the "zero mortality rate" did not remove any authority from the Secretary. Id. Congress made a special note of the fact that the Secretary would continue to retain authority to promulgate regulations governing the taking of marine mammals under the MMPA. This included the authority to set quotas, or limits on the number of takes per year allowed. Id. For example, as of 1980, the Secretary had set a quota of 20,500 dolphin takes per year.
A "small take" exemption for commercial fishing was also added to the 1981 amendments. 1981 U.S.C.C.A.N. at 1460. The purpose of these measures was to allow fisherman who, in the course of fishing, incidentally take a small number of marine mammals to receive a permit the lengthy procedures required for general permits issued to the fisherman that take large numbers of marine mammals. Id. The Committee intended that these provisions would be available for persons whose taking of marine mammals is "infrequent, unavoidable, or accidental." Id. at 1469.
One of the most significant changes in 1984 was to ensure that nations exporting to the United States have adequate marine mammal protection program. The 1984 amendments directed the Secretary to require evidence from foreign governments that they have regulatory programs that are comparable to the United States. This included documentation that the average rate of incidental taking of marine mammals was comparable to that of the United States. 98 Stat. 440. In years to come, this amendment would prove to be a significant first step toward greater international protection for dolphins.
The general permit issued to the American Tunaboat Association ("ATA") was statutorily extended for an indefinite period, subject to a number of specific conditions. These conditions included changes in fishing gear, techniques, and practices if required by the Secretary. In addition, to specifically protect the coastal spotted and eastern spinner dolphins, quotas of 250 and 2,750 respectively were incorporated into the Act. 98 Stat. 441.
During the hearings held in 1984, it became apparent that the National Marine Fisheries Service ("NMFS") did not have the necessary data on which to calculate the impact of incidental mortality on the populations of different stocks of dolphins. H.R. Rep. 100-970, reprinted in 1988 U.S.C.C.A.N. 6154. In order to obtain this information, the MMPA was amended to direct the Secretary to carry out five years of scientific research to monitor the populations and trends for dolphins in the ETP. The purpose of the program was to provide the basis for determining if the dolphins were being adversely affected by incidental takes. Id.
Reacting to lawsuits filed by the Kokechik Fishermen’s Association and several environmental groups, the MMPA Amendments of 1988 added a provision to the Act which provided for the issuance of a new 5-year Interim Exception for Commercial Fisheries. This new provision implemented a negotiated agreement between commercial fishing organizations and environmental groups, and created a 5-year period during which the nonintentional killing of marine mammals during most commercial fishing operations was permitted in exchange for an agreement by fishermen to carry observers and report all interactions with marine mammals during fishing operations. This statutory extension would have expired on October 1, 1993, but it was extended for an additional six months, until April 1, 1994. See Kokechik Fishermen’s Association v. Secretary of Commerce, 268 U.S. App. D.C. 116 (1988); see also S. Rep. 103-220, 1994 U.S.C.C.A.N. 518.
III. The MMPA Today
The complexity of the MMPA is more easily understood by examining the Act in four main components. In its simplest form, the MMPA contains policy goals for marine mammals, a moratorium on "taking," exceptions to this moratorium, and finally, penalties for MMPA violations.
Again, as in the original Act, the policy declared in the MMPA includes the following three findings:
- 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;
- 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. 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.
- Marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem.
P.L. 92-522, 86 Stat. 1027, 1027-1028; see also 16 U.S.C. § 1361.
Congress sought to achieve these goals by establishing a moratorium on the taking and importation of marine mammals. 86 Stat. at 1029. However, the moratorium was and is still, not absolute. Exceptions to the moratorium are allowed through the issuance of permits. Id. Permits may be issued for commercial fisheries, scientific research, and public display.
There are both civil and criminal penalty provisions under the MMPA. 16 U.S.C. § 1375. A person who violates any provision of the MMPA, including a permit or regulation, may be assessed a civil penalty of $10,000 for each violation. Id. at 1375(a)(1). A person who knowingly violates any provision of the MMPA may be charged criminally. Upon conviction, a person may be fined up to $20,000 for each violation, imprisoned for up to one year, or both. Id. at 1375(b).
IV. Defining Key Terms under the MMPAMany of the key terms in the MMPA, while seemingly unambiguous, take on additional and specific meanings under this statute. To better understand the statute’s definitional meanings, a brief listing of specific definitions and their meanings is appropriate.
Congress sought to achieve the objectives of the MMPA by establishing a moratorium on the taking and importation of marine mammals. This method has caused controversies over what constitutes a "taking" and how to interpret this term in light of the statute and agency regulations. On one hand, courts have limited the taking prohibition by allowing sometimes violent measures to be used to deter marine mammals from property. Congress affirmed this finding by specifically authorizes deterrence measures in certain circumstances under the 1994 amendments to the MMPA. On the other hand, the taking provision has been strengthened over time by including feeding as a form of taking by harassment. These developments are discussed below.
Section 1372 (a)(1) of the MMPA declares 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."
"Taking" under the MMPA is defined in the statute to mean "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." 16 U.S.C. § 1362(11)A.
Perhaps the best-known analysis of "taking" under the MMPA is United States v. Hayashi, 22 F.3d 859 (9th Cir. 1994). In this case, the Ninth Circuit Court of Appeals found that a fisherman who shot at porpoises with a rifle did not constitute a taking under the MMPA.
The defendant Hayashi and his son were fishing when a group of porpoises began to eat tuna off their fishing lines. Id at 861. In an attempt to scare the porpoises away, Hayashi fired two rifle shots into the water. Id. The animals were not hit by the rifle shots, but Hayashi was subsequently charged with knowingly taking a marine mammal in violation of the MMPA. Id.
Under the definition of "taking," the Court of Appeals concluded that "to harass" was the only action that could possibly apply to Hayashi’s case. Id. At the time of Hayashi’s conduct, however, "harass" was not defined in the MMPA or any other regulation. Id. The Court of Appeals interpreted "harassment" under the MMPA to involve a "direct and significant intrusion" upon normal marine mammal behavior. Id. at 864. It found that the MMPA did not reach Hayashi’s action because it did not disrupt "normal" or "natural" behavior. Id. Namely, it was not natural for the porpoises to feed off fishing lines. Id.
The Court of Appeals also concluded that the MMPA’s prohibition against taking by disturbing is not extended to marine mammals acting in ways that endanger human life or property. Id. According to the Court, this would lead to absurdity. Id
"Under such a broad interpretation, anyone who acted to prevent or in any way interfered with any marine mammal activity would face potential criminal prosecution. Nothing could legally be done to save a modern-day Jonah from the devouring whale, or to deter a rampaging polar bear from mauling a child. Neither could a porpoise intent on swimming into severely contaminated waters, or into the propellers of a motor boat, be diverted by the selfless actions of a Good Samaritan." Id.
In the 1994 Amendments to the MMPA, Congress created authorization for persons who found themselves in the same position as Mr. Hayashi to deter marine mammals from damaging property. While these amendments include a statutory definition of "harassment," they do not incorporate the Ninth Circuit’s strict requirement of "significant intrusion" in all cases.
Section 1371(a)(4)(A) as amended states that the prohibitions of the MMPA do not apply to the use of measures:
(i) by the owner of fishing gear or catch, or an employee or agent of such owner, to deter a marine mammal from damaging the gear or catch;
(ii) by the owner of other private property, or agent, bailee, or employees of such owner, to deter a marine mammal from damaging private property;
(iii) by any person, to deter a marine mammal from endangering personal safety; or
(iv) by a government employee, to deter a marine mammal from damaging public property,
so long as such measures do not result in the death or serious injury of a marine mammal.
The amendments prohibit intentional killing and authorize only acts of deterrence that do not cause serious injury or mortality to marine mammals. Intentional lethal taking is explicitly prohibited, except if such taking is "imminently necessary in self-defense or to save the life of a person in immediate danger…" 16 U.S.C. § 1371(c). Congress also added an exception to the taking provision which addressed the concern of the Ninth Circuit in Hayashi that absurd results could result from such a broad interpretation. The "Good Samaritan" exception allows a taking where it will avoid serious injury, additional injury, or death to a marine mammal entangled in fishing gear or debris as long as reasonable care is exercised and the animal is released safely. 16 U.S.C. § 1371(d).
The 1994 Amendments also require the NMFS to publish a list of guidelines for use in safely deterring marine mammals and to prohibit deterrence measures that have a significant adverse impact on marine mammals. 60 F.R. 22345. In May of 1995, the NMFS published a preliminary version of the guidelines and prohibitions, seeking public comment. Id. In 1998, the NMFS again invited public comment on deterrence regulations and guidelines and has yet to publish a final rule. 63 F.R. 9202.
The deterrence measures proposed by the NMFS fall into three categories: passive, preventive, and reactive. 60 F.R. 22345-22346. Passive deterrence measures are described as those that prevent a marine mammal from gaining access to property, people, or fishing gear. Id. Fixed barriers, fencing, or predator nets are included in this category and may be used if they do not increase the risk of entanglement, serious injury or death of a marine mammal. Id.
As the name suggests, preventive measures focus on dissuading a marine mammal from beginning to interact with property, people, or fishing gear. Id. The NMFS proposes that underwater acoustic devices that generate sounds known to be annoying to marine mammals, light explosives, and a technique called "boat hazing," (where a boat patrols a small area to deter marine mammals with boat noise or by blocking their approach at the surface) are all acceptable examples of preventive measures. Id.
Reactive measures are taken with the intent of stopping a dangerous or damaging interactions and require the most assertive actions. Id. Some examples of generally acceptable reactive measures are prodding a marine mammal with blunt poles, pushing or herding an animal with plywood or canvas, or spraying water at an animal. Id.
Despite the endorsement of a rather wide variety of deterrence measures, the NMFS does include a number of prohibited activities. Surprisingly, the prohibited activities include the action taken by the defendant in Hayashi. Firearms or any device used to propel an object including, crossbows, spearguns, bangsticks, archery gear, harpoons, javelins, and spears are prohibited. Id. The NMFS concluded that devices that propel projectiles cannot be used without having a significant adverse effect on the targeted marine mammal. Id. The use of explosives is also prohibited from use on dolphins and whales. The NMFS did not propose to prohibit their use on pinnipeds (seals, sea lions, or walruses), however, because found no evidence that seal bombs and light fireworks present a significant adverse impact to them or their environment. Id. (See id. for a discussion of studies comparing the use of explosives on dolphins and pinnipeds.) Finally, the NMFS proposes a prohibition on the use of translocation (the capture and relocation of wild marine mammals) and tainted bait, poisons or any other object intended to for consumption. Id. at 22347 (noting that the practice of feeding marine mammals in the wild is prohibited by regulation 50 CF.R. 216.3).
See also Mark A. Yaggi, United States v. Hayashi: Taking Aim at the Marine Mammal Protection Act, 14 Pace Envtl. L. Rev. 409, Fall 1996.
B. Harassment and Feeding
In 1991, the NMFS amended the definition of "take" to include "feeding or attempting to feed" as an example of "harassment" under the MMPA. 56 F.R. 11693. The NMFS found that feeding populations of marine mammals is contrary to the intent and purpose of the MMPA because it disrupts their natural behavior and normal feeding patterns. In Strong v. United States, 5 F.3d 905 (5th Cir. 1993) the authority of the Secretary and the NMFS to promulgate this rule was challenged. The district court permanently enjoined enforcement of the regulation. Id. at 906. On appeal, the Court of Appeals for the Fifth Circuit upheld the regulation and vacated the injunction. Id.
The plaintiffs in Strong were owners of a commercial tour boat business that takes tourists to feed dolphins. They argued that the Secretary lacked the authority to consider feeding to be a form of harassment and, therefore, regulate it. Id. The district court agreed and rejected the decision of the NMFS because it found "to feed" is not among the dictionary definitions of "harass." Id. Disagreeing with this finding, the Court of Appeals noted, "disturb" is synonymous with "harass" and found that the NMFS had been given substantial scientific evidence that feeding wild dolphins disturbs their normal behavior and may make them less able to search for food on their own. Id. at 907. It, therefore, concluded that it was clearly reasonable to restrict or prohibit the feeding of wild dolphins as a hazard to them and the Secretary did so within his authority. Id.
Although the feeding prohibition became effective in 1991, recent prosecutions demonstrate that commercial tour boat businesses continue to feed wild dolphins and ignore the law. For example, a commercial business similar to the one in the Strong case was assessed civil penalties in the amount of $4,500 for taking tourists to feed wild dolphins. See In the Matter of Thomas E. Rainelli and Hathaway Boat Rentals, Inc., 1999 NOAA Lexis 10 (1999). The respondent in this case warned a customer that they had to be "very careful of marine cops…" because it was illegal to feed dolphins. Despite this knowledge of the law, the respondent urged the customer to purchase frozen cigar minnows to feed dolphins. Id. The court found that both the boat operator and the owner of the vessel, though not present during the feeding, committed five violations of the MMPA. Id. Under NMFS regulations, the owner of the vessel provided a "platform from which feeding is conducted or supported" which made him liable as well. In addition to the fines imposed, the court also ordered the respondents to post a "No Dolphin Feeding" sign and poster on the counter and grounds of the boat rental location. Id.
The definition of "harassment" was clarified in the 1994 Amendments. Section 18(A) of 16 U.S.C. § 1362 now reads:
The term ‘harassment’ means any act of pursuit, torment, or annoyance which-
(i) has the potential to injure a marine mammal or marine mammal stock in the wild; or
(ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption off behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.
(B) The term ‘Level A harassment’ means harassment described in subparagraph (A)(i).
(C) The term ‘Level B harassment’ means harassment described in subparagraph (A)(ii).
The NMFS states that it "considers a Level B harassment taking to have occurred if the marine mammal has a significant behavioral response in a biologically important behavior or activity." 66 F.R. 43442, 43444. Examples of "significant behavioral responses" include animals either leaving an area of habitation for a period of time, or diverging significantly from their migratory path to avoid either an acoustic or a visual interference. Id. Non-significant behavioral responses are when only a few animals leave an area, but many animals are alerted to the disruption; or when marine mammals make minor course corrections that are not obvious to observers or directional plotting. Id.
There have been many difficulties in implementing and interpreting the amended definition of harassment. At a hearing in the House of Representatives, a representative from the NMFS explained these difficulties. She noted that the two-tiered definition is complex and is somewhat ambiguous. For example, scientists and photographers must obtain permits for Level B harassment, but activities that more clearly impact a marine mammal are not necessarily controlled. "On the Marine Mammal Protection Act" June 29, 1999, (statement of Penelope Dalton, Assistant Administrator for Fisheries). The term is presently being considered for further amendments for 2002. See "Marine Mammal Protection Act Reauthorization: Hearings Before the Committee on House Resources Subcommittee on Fisheries Conservation, Wildlife and Oceans," June 13, 2002. (speakers Dr. William T. Hogarth, Peter F. Worcester, and Andrew E. Wetzler).
(c) It is unlawful to import into the United States any of the following:
(1) Any marine mammal which was--
(A) taken in violation of this title; or
(B) taken in another country in violation of the law of that country.
(2) Any marine mammal product if--
(A) the importation into the United States of the marine mammal from which such product is made is unlawful under paragraph (1) of this subsection; or
(B) the sale in commerce of such product in the country of origin of the product is illegal;
(3) Any fish, whether fresh, frozen, or otherwise prepared, if such fish was caught in a manner which the Secretary has proscribed for persons subject to the jurisdiction of the United States, whether or not any marine mammals were in fact taken incident to the catching of the fish.
Id. See also 50 C.F.R. 216.12, 216.13 for further agency regulations on importation.
The MMPA addresses not only the taking and killing of marine mammals by United States citizens, but also the importation of them. This reflects the congressional decision that a denial of import privileges is an effective method of protecting marine mammals in other parts of the world. Animal Welfare Institute v. Kreps, 561 F.2d 1002, 1010 (D.C. Cir. 1977). The NMFS is accorded the first opportunity to interpret the meaning of importation under the MMPA, and in doing so, has not required specific intent for violations of this provision. Marine Wonderland & Animal Park, Ltd., v. Kreps, 198 U.S. App. D.C. 5 (1979). Civil penalties have, therefore, been assessed in situations where persons have merely entered the territorial limits of the United States with marine mammals.
For example, in 1980, the NMFS initiated civil penalty proceedings against a Japanese citizen for the unlawful importation of four dolphins into the United States. In the Matter of: Akiko Kawahara, 2 O.R.W. 340, 1980 NOAA LEXIS 3. The principal issue in the case was whether a planned stopover of a few hours at Kennedy Airport constituted an "importation" within the meaning of the MMPA. Id. at 7. The court found that fact that the dolphins only landed in New York as a stopover to Tokyo was irrelevant. Id. at 12. It focused on the fact that the respondent entered the territorial limits of, and a place subject to, the jurisdiction of the United States. Id. A civil penalty was assessed in the amount of $7,500.
In a similar case to In the Matter of Akiko Kawahara, it was found that specific intent is not required for importation under the MMPA. In the Matter of Darcy Lynn Shawyer, William Jesse Roberts, John Holer, Marine Wonderland and Animal Park, Ltd., 2 O.R.W. 301, 1980 NOAA LEXIS 2 (1980) an airplane carrying eight dolphins had to land in the United States on its way from Mexico to Canada due to bad weather. The court found that the route taken over the United States, the requirement to land for customs clearance purposes, or weather conditions was known or should have been foreseeable to all parties. The civil penalties assessed were over $10,000 to respondents.
Section 1362(1) of the MMPA defines the term "depletion" or "depleted" as meaning any case in which-
(A) the Secretary, after consultation with the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals established under title II of this Act determines that a species or population stock is below its optimum sustainable population;
(B) a State, to which authority for conservation management of a species or population stock is transferred under section 109 [16 U.S.C. 1379], determines that such species or stock is below its optimum sustainable population; or
(C) a species or population stock is listed as an endangered species or a threatened species under the Endangered Species Act of 1973.
Optimum sustainable population" ("OSP") means-
"…with respect to an population stock, the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element."
As a matter of policy, the MMPA mandates that marine mammals should not be permitted to fall below their OSP level. 16 U.S.C. § 1361(1). Under agency regulations, a species is considered to have fallen below its OSP, and is depleted, if its population level is less than 60 percent of its estimated historic levels. See 58 F.R. 58285, 45 F.R. 72178 and 42 F.R. 65448. Determinations for depletion are made on the best available scientific data. 58 F.R. 58285.
On November 1, 1993, the NMFS listed the northeastern offshore spotted dolphin as depleted in response to a 1991 petition filed by Environmental Solutions International, Greenpeace, and other organizations. Earth Island Institute v. Brown, 865 F.Supp. 1364, 1367 (D.C.N.C.A. 1994). The Secretary found that its population had diminished 77 percent from its historic population level of over 3 million in the 1950s to a stock level of only 23 percent of its OSP. Id. The plaintiffs in Earth Island Institute, therefore, sought to prohibit the Secretary from allowing the American Tuna Association ("ATA") to continue to set nets on, and kill, northeastern offshore spotted dolphins. Id. The defendants argued that killings of the northeastern offshore spotted dolphin were permissible because they had a general permit that exempted them from the taking prohibitions. Id.
The court concluded that Congress did not intend to allow the continued taking of dolphin species once the Secretary had determined that their population level was depleted, permit or not. Id. at 1369. It also found that once the Secretary has issued a final rule, interested parties can no longer challenge the listing. Id. The ATA was immediately enjoined from taking northeastern offshore spotted dolphins. Id. at 1377.
The following dolphins have been designated as depleted under the MMPA:
- Mid-Atlantic Coastal Migratory Bottlenose Dolphin
- Eastern Spinner Dolphin
- Northeastern Offshore Spotted Dolphin
- Coastal Spotted Dolphin
The eastern spinner dolphin, the northeastern offshore spotted dolphin, and the coastal spotted dolphin are all dolphin stocks in the ETP (Eastern Tropical Pacific Ocean). The eastern stock of spinner dolphins and the northeastern spotted dolphins are the primary targets of chase and encirclement by the tuna purse seine fishery in that area. NMFS scientists conducted abundance surveys for these dolphins and results from the surveys are available with the NMFS, along with Stock Assessment Reports. Since these species are designated as depleted, they receive heightened protection under the MMPA and the NMFS focuses its attention on guiding research and management actions to restore the health of the species.
V. Exemptions to the Taking Provision
A. The Exemption for Commercial Fisheries under the MMPA
The competing interests of protectionism and commercialism are most evident with regard to dolphins and their interactions with commercial tuna fisheries. The 1994 Amendments to the MMPA made a number of changes to the regulations governing the incidental taking of marine mammals in the course of commercial fishing operations. These changes make up the Marine Mammals Authorization Program ("MMAP"). The purpose of the MMAP is to provide an exception for commercial fisheries from the general taking prohibitions of the MMPA. Some of the changes made in 1994 include:
- a seven-year goal for reducing serious injury and mortality of marine mammals to insignificant levels approaching a zero mortality and serious injury rate;
- a simplified registration process for fisheries divided into three categories based on the relative frequency of incidental serious injuries and mortalities of marine mammals;
- reporting only when a marine mammal has been injured or killed;
- prohibition against intentionally lethally taking marine mammals;
- a mechanism for issuing permits to incidentally take endangered and threatened marine mammals;
- the authority to place observers on vessels in certain categories of fisheries; and
- the establishment of take reduction teams and development of take reduction plans for certain fisheries.
108 Stat. 532, P.L. 103-238. See also http://www.nmfs.noaa.gov/prot_res/PR2/ Fisheries_Interactions/fisheriesinteractions.html for more detailed information on the MMAP.
The MMAP replaces the Interim Exception for Commercial Fishing, in effect from 1989 to August 1995. The information collected on marine mammal interactions with commercial fisheries collected under this program, as well as other sources, are intended to provide a basis for determining whether the incidental serious injury and mortality of marine mammals in commercial fishing operations has been reduced to insignificant levels approaching a zero mortality and serious injury rate. Id.
B. Other Exemptions- Scientific Research, Photography, and Small Take Permits
In addition to the exemption granted to commercial fisheries, exemptions to the MMPA moratorium on taking are granted for scientific research, enhancing the survival or recovery of a marine mammal species or stock; commercial or education photography; and public display. See 16 U.S.C. § 1374. To participate in these activities, the Secretary issues permits or authorizations.
Scientific research permits are divided into two categories based on the level of harassment associated with the taking. The "Scientific Research and Enhancement" permit is required for any research activity that involves any take constituting Level A Harassment and/or any research involving endangered or threatened species under the Endangered Species Act ("ESA"). Research activities dealing with threatened or endangered species also require a biological opinion. These permits undergo a 30-day public comment period and are reviewed by experts from NMFS, the Marine Mammal Commission, and other federal agencies.
"General Authorization of Scientific Research" permits may be granted for activities involving Level B Harassment of marine mammals not listed as endangered or threatened under the ESA. Researchers must submit what is called a Letter of Intent. The Letter of Intent contains detailed information on the research that helps the NMFS decide if the project involves the "bona fide" scientific research required by section 1374(c)(3). If the research qualifies as bona fide scientific research, no public comment period is necessary.
See www.nmfs.noaa.gov/prot_res/PR1/Permits/pr1permits_types.html for permit applications and further descriptions.
The 1994 Amendments established a new provision to allow marine mammals in the wild to be photographed for educational and commercial purposes. 16 U.S.C. § 1374(6). These permits are limited to Level B Harassment and require the photographs be made available to the public. Id.
(Note: Public display permits are discussed below under the Captivity section).
VI. Scope and Legal Standing
Courts have made it difficult for environmental organizations to establish standing under the MMPA. While standing to challenge waiver regulations has been conferred upon the same categories of people to whom Congress gave standing to challenge permits, courts, for example, have rejected standing for animals and any causes of action that are motivated by economic interests.
The District of Columbia Circuit Court was the first court to rule on standing under the MMPA in Animal Welfare Institute v. Kreps in 1977. Animal Welfare Institute, at 1002. The appellants in Animal Welfare Institute were eight environmental groups that challenged a decision by the government to waive the MMPA’s moratorium and permit the importation of baby fur sealskins. Id. at 1003. The district court dismissed the suit and held that the eight groups lacked standing to sue. The Court of Appeals for the District of Columbia reversed, holding that the appellants did have standing and that the Government’s decision to waive the ban on importing baby fur sealskins violated the MMPA. Id.
The court found that the appellants’ claim had a firm statutory basis, based upon the nature of the statutory waiver-permit scheme. Id. at 1006. The MMPA provides public notice and welcomes full participation by all "interested parties" in the proceedings on a permit application. 16 U.S.C. § 1374(d). When the agency decides to grant a permit, "any applicant for a permit, or any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary under this section or of his refusal to issue such permit." Id. The eight environmental groups participated fully in the administrative proceedings and vigorously opposed the grant of the permit, so the court determined that they qualified as "parties opposed." Animal Welfare Institute, at 1006.
The legislative history of the MMPA reveals that Congress clearly intended judicial review to be available under the general federal jurisdictional statutes. Id. The district court, therefore, concluded that Congress intended to confer standing to challenge waiver regulations on the same categories of people to whom it gave standing to challenge permits. Id. Moreover, the court found the even if the provisions of the statute did not, the appellants also satisfied the three prerequisites for standing. (The Supreme Court reiterated the familiar three-part test for standing as revised in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). First, plaintiff must have suffered an injury in fact. Second, there must be a causal connection between the injury and the conduct complained of, the injury has to be fairly traceable to the challenged action of the defendant and not the result of a third party. Third, it must be ‘likely’ as opposed to merely ‘speculative’ that the injury will be redressed by a favorable decision. Lujan, at 560-561.)
Besides recognizing standing for the appellants in this particular case, the court in Animal Welfare Institute made an observation in favor of environmental organizations seeking standing. It said:
"In examining this claim we cannot ignore the fact that the MMPA is an unusual statute: its sole purpose is to promote protection of animals. Where an act is expressly motivated by considerations of humanness toward animals, who are uniquely incapable of defending their own interests in court, it strikes us as eminently logical to allow groups specifically concerned with animal welfare to invoke the aid of the courts in enforcing the statute."
Id. at 1007.
In Citizens to End Animal Suffering and Exploitation v. The New England Aquarium, 836 F.Supp. 45 (D.C. Mass. 1993), the court held that animals do not have standing to bring suit under the MMPA. The suit in Citizens to End Animal Suffering, was originally brought by Kama, a dolphin, and various other animal welfare organizations to protest the transfer of Kama from the New England Aquarium to the Department of the Navy. Id. at 46
Ultimately, the court found that the MMPA language "any party opposed to such permit," makes it clear that "party" applies to persons, not animals. Id. The court would not impute to Congress or the President the intention to provide standing to a marine mammal without a clear statement in the statute. It argued that if Congress and the President had intended the MMPA to make the extraordinary step of authorizing animals to sue, "they could, and should have said so plainly." Id. In addition the court looked to F.R.Civ.P. 17(b) that discusses the "capacity of an individual . . .to sue or be sued." The court found no indication that it does not apply to non-humans. Id. The court required Kama’s name be removed from the caption of this case. Id.
In considering standing under the MMPA, multiple courts have also held that economic interests are not within the "zone of interests" of the MMPA, the third prong to the test for standing. See Kanoa, Inc. v. Clinton, 1 F. Supp. 2d 1088 (1998); City of Sausalito v. O’Neill, 2002 U.S. Dist. LEXIS 12457. These cases have involved pure economic injury and not a showing that any harm would result to marine mammals protected under the statute. The cases discuss the importance of the maintaining the marine life population through resource management. Consequently, plaintiffs who do not demonstrate an interest in marine life population conservation or protection do not have standing. The United States Court for the District of Hawaii perhaps stated this premise best:
The primary purpose of the MMPA is to protect marine mammals; the Act was not intended as a ‘balancing Act’ between the interests of the fishing industry and the animals…The interest of the marine mammals come first under the statutory scheme, and the interests of the industry, as important as they are, must be served only after the protection of the animals is assured.
Kanoa, Inc., at 1094.
C. Reach of the Act
The MMPA prohibitions are restricted by geographic scope. Except as expressly provided for by an international treaty, convention, or agreement to which the United States is a party, it is unlawful, "for any person or vessel . . . to take a marine mammal in waters or on lands under the jurisdiction of the United States." 16 U.S.C. § 1372 (a)(1) and 1372(a)(2)(A). In United States v. Mitchell, 553 F.2d 996 (5th Cir. 1977), the Fifth Circuit Court of Appeals held that the criminal prohibitions of the MMPA do not reach conduct on foreign territorial waters.
Referring to United States v. Bowman, 260 U.S. 94 (5th Cir. 1922), the Fifth Circuit found that the nature of the MMPA does not compel its application to foreign territories. The MMPA, it argued is a conservation statute, designed to preserve marine mammals. The nature of such a bill is based on the control that sovereign nations, such as the United States, have over the natural resources within their territories. It can exploit them or preserve them or establish a balance between exploitation and preservation. The court found that the basic purpose of the moratorium, prohibitions, and permit system therefore appears to be the protection of marine mammals only within the territory of the United States and on the high seas. Finally, the court noted that restricting the territorial scope of the Act would not greatly curtail the scope and usefulness of the statute nor frustrate its purpose. Mitchell, at 1003.
The court also found that the legislative scheme of the MMPA requires the State Department to pursue international controls by the usual methods of negotiation, treaty, and convention. Id. at 1005. Without a clearer expression from Congress to the contrary, the court found that it must presume that United States jurisdiction under the Act ceases at the territorial waters and boundaries of other states. Id.
VII. International Dolphin Protection
In the 1970s, United States vessels dominated the ETP. With the enactment of the MMPA, mortality from tuna fishing by the United States fleet began to decline and participation in the fishery by foreign vessels began to increase. By the mid 1980s foreign vessels dominated the ETP. To address the concerns regarding the increased mortality by foreign vessels, Congress amended the MMPA in 1984 and 1988 to tighten the importation requirements for tuna. In 1986, estimates showed that dolphin mortality from foreign fishing was over 110,000 for the year, while United States mortality was under 21,000. By 1990, the total dolphin mortality from foreign fishing was over 47,000, while United States associated dolphin mortality was down to 5,000. Within the next decade, Congress began to more actively target international agreements and importation restrictions to combat mortality by foreign nations. See "MMPA Bulletin," Issue No. 18, 1st Quarter 2000.
A. "Dolphin Safe" Labeling
In 1990, Congress passed the Dolphin Protection Consumer Information Act ("DPCIA") which required that tuna labeled as "dolphin safe" meet certain criteria. Nov. 28, 1990, P.L. 101-627, Title IX, § 901 104 Stat. 4465, see also 16 U.S.C. § 1385 as amended. As a part of the Act, Congress found that dolphins are frequently killed in the course of tuna fishing operations in all parts of the world and that consumers would like to know if the tuna they purchase is harvested by killing dolphins. See Section 1385(1) and (3). At that time, tuna harvested in the eastern tropical Pacific Ocean (ETP) on a trip where there was even one instance of intentional encirclement of dolphins meant the entire load of tuna for that trip could not be considered dolphin-safe. Violations were punishable by civil penalties of up to $100, 000 per offense.
The DPCIA did not actually require dolphin-safe labeling, but U.S. tuna canners instituted a voluntary dolphin-safe tuna campaign where they purchased only dolphin safe tuna for introduction to the U.S. market.
B. Mexico Brings a Case Against the United States under GATT
The 1984 Amendments added provisions which require the government of the exporting nation provide documentary evidence that the nation has adopted a regulatory program governing the incidental taking of marine mammals "comparable" to the United States. See 98 Stat. 440, 16 U.S.C. § 1371(a)(2). The amendments of 1988 clarified what comparability standards were required under the Act. These included prohibitions on fishing activities under U.S. law, encircling schools of marine mammals, "sundown sets," and limitations on the total number of eastern spinner dolphins that could be taken. They also required that the average rate of incidental taking of foreign vessels be no more than 2.0 times that of the United States vessels by the end of 1989 and no more than 1.5 times by the end of 1990. Id. 102 Stat. 4755, 4765.
In 1991, Mexico was the exporting country most concerned with the MMPA regulations because its exports of tuna to the U.S. were banned. It complained under the GATT dispute settlement procedure. Mexico asked for a panel in February 1991. A number of intermediary countries also expressed an interest because they were under an embargo as well. The panel reported to GATT members in September 1991. It concluded:
- That the U.S. could not embargo imports of tuna products from Mexico simply because Mexican regulations on the way tuna was produced did not satisfy U.S. regulations. But, the U.S. could apply its regulations on the quality or content of the tuna imported.
- That GATT rules did not allow one country to take trade action for the purposes of enforcing its own domestic laws in another country, even to protect animal health or exhaustible natural resources.
The panel was also asked to consider the U.S. policy of requiring tuna product to be labeled "dolphin-safe." It concluded that this did not violate GATT rules because it was designed to prevent deceptive advertising on all tuna products, whether imported or produced in the U.S.
Mexico decided not to pursue the case and the panel report was never adopted. Mexico and the United States worked on achieving their own agreements outside GATT.
See www.wto.org for a case study on the Mexico etc. versus US: Tuna-Dolphin; "The Use and Abuse of Trade Leverage to Protect the Global Commons: What We Can Learn fro the Tuna-Dolphin Conflict," 12 Geo. Int’l Envtl. L. Rev. 1 (Fall, 1999); GATT Dispute Panel Report on U.S. Restrictions on Imports of Tuna (Sept. 3, 1991), 10 I.L.M. 1594 (1991).
C. International Dolphin Conservation Program
The International Dolphin Conservation Act ("IDCA") was passed in 1992 to establish an international moratorium on the practice of tuna fishing with purse seine nets set on or to encircle dolphins or other marine mammals. Unfortunately, the United States was not successful in getting any nation to commit to the moratorium. The IDCA did, however, require the number of dolphins killed or seriously injured decrease from one year to the next in the United States. Because of these mandatory decreases for the U.S. vessels, foreign participation in the ETP continued to increase and mortality was managed under the voluntary International Dolphin Conservation Program ("IDCP") supported by the Inter-American Tropical Tuna Commission ("IATTC"). Since 1992, nations participating in the fishery have worked to negotiate the following substantial international conservation measures for dolphins.
In April 1992, nations fishing in the ETP, including the United States, negotiated a non-binding international agreement referred to as the "La Jolla Agreement." 33 I.L.M. 936, (1994). The ten nations party to the agreement were: Colombia, Costa Rica, Ecuador, Mexico, Nicaragua, Panama, Spain, the United States, Vanuatu, Venezuela. Id. The objectives of the agreement were:
Progressively reducing dolphin mortality in the eastern Pacific Ocean (EPO) fishery to levels approaching zero through the setting of annual limits; and with a goal of eliminating dolphin mortality in this fishery, seeking ecologically sound means of capturing large yellowfin tunas not in association with dolphins while maintaining the populations of yellowfin tuna in the EPO at a level which will permit maximum sustained catches year after year, and to limit and, if possible, eliminate the mortality of dolphins in the fishery of the EPO . . . Id.
To achieve these goals, the Agreement established a schedule with yearly limits on dolphin takes. Id. For example, by 1999, the dolphin mortality rate was to be less than 5,000. Id. A review panel was created to review and monitor the compliance with the mortality limits in the yearly schedule. Id.
Each party agreed that it would provide the Director of the IATTC with a list of "qualified vessels" (purse-seine vessels of carrying capacity greater than 400 short tons under its jurisdiction which the government has reasonable cause to believe will set on tunas associated with dolphins). Id. The review panel would then assign an Annual Dolphin Mortality Limit ("DML") to each vessel. Id. The DML is calculated by dividing the total annual mortality quota by the number of qualified vessels. Id. Once a vessel reached its DML, the participating governments were required to have the vessel cease fishing. Id. The governments were also required to permit observers on every fishing trip to collect information and 50 percent of the observers were required to be from the IATTC observer program. Id.
By 1993, nations fishing in the ETP under the La Jolla Agreement had reduced dolphin mortality to less than 5,000 dolphins annually, six years ahead of the schedule established in the Agreement. 65 F.R. 30. In October 1995, the success of the La Jolla Agreement led the United States, Belize, Colombia, Costa Rica, Ecuador, France, Honduras, Mexico, Panama, Spain, Vanuata, and Venezuela to sign the Panama Declaration to strengthen and enhance the dolphin conservation. Id. at 31.
The Panama Declaration, signed October 4, 1995, was the result of the efforts made by five environmental organizations, the Center for Marine Conservation, Greenpeace International, World Wildlife Fund, National Wildlife Federation, and the Environmental Legal Defense Fund, who negotiated an initial draft with Mexico and the other nations in the ETP fishery. The Declaration formalized the La Jolla Agreement into a binding international agreement. Marine Mammal Annual Report, 1988 p. 37. The signing nations agreed that they would enter into the agreement, if the United States amended the provisions of the MMPA for those countries participating in the international dolphin conservation program. Id. The amendments to the MMPA were expected to lift the embargoes imposed under the MMPA, permit the sale of both dolphin-safe and non-dolphin safe tuna in the United States market, and change the definition of "dolphin-safe" to mean "tuna harvested without dolphin mortality," rather than tuna harvested without any dolphin encirclement. Defenders of Wildlife v. Hogarth, 177 F.Supp. 2d 1336 (Ct. Intl. Trade 2001) (citing the "Panama Declaration" at Annex 1.)
See also Chmael, George A. and Nancy E. Whiteman, "Caught in the Net of Environmental Law and Policy: Moral Outrage Versus Cool Analysis in the ETP Tuna-Dolphin Controversy," 6 U. Balt. J. Envtl. L. 163 (Fall, 1998).
D. The International Dolphin Conservation Program Act
Congress considered several bills to implement the Panama Declaration, but it ultimately, passed the International Dolphin Conservation Program Act ("IDCPA"). P.L. 105-42, 111 Stat. 1122 (1997). The act stated three purposes:
- to give effect to the Panama Declaration;
- to recognize that nations fishing for tuna in the ETP ocean have achieved significant reductions in dolphin mortality associated with that fishery; and
- to eliminate the ban on imports of tuna from those nations that are in compliance with the IDCP.
See id. at 1122.
The IDCPA amended the MMPA once again and revised the criteria for banning imports. Under the IDCPA, a nation is permitted to export to the United States if it provides documentary evidence that it complies with the IDCP and it does not exceed certain DMLs. 111 Stat. at 1123- 1124. The IDCPA also changed the dolphin-safe labeling standard by amending the DPCIA. Under this amendment, the Secretary is directed to make initial and final findings of "whether the intentional deployment or encirclement of dolphin with purse seine nets is having a significant adverse impact on any depleted dolphin stock in the eastern tropical Pacific Ocean." 16 U.S.C. § 1385(d)(2). These findings, that consider stress studies and other research, are used to decide whether to change the definition of "dolphin-safe." Id. The amendments under the IDCPA would become effective when the Secretary of State certified that a legally binding instrument establishing the IDCP had been adopted and was put into force. 111 Stat. at 1139.
The IDCPA, together with the Panama Declaration, became the blueprint for the agreement on the IDCP. 65 F.R. at 31. In May 1998, eight nations, along with the United States, signed a binding international agreement to implement the IDCP. Id. The IDCP became effective on February 15, 1999, after four nations ratified and accepted it. Id.
About two months later, on May 7, 1999, the Secretary issued his Initial Findings required by the IDCPA. 64 F.R. 24590. NMFS found that there was insufficient evidence that chase and encirclement by the tuna purse seine fishery was having a "significant adverse impact" on depleted dolphin stocks in the ETP. Id. Pursuant to the Initial Finding, the dolphin-safe label standard changed effective February 2, 2000 to permit the use of "dolphin-safe" labeling when purse seine nets are used, as long as no dolphins were killed or seriously injured during the particular set in which the tuna were caught. Id.
Based on the Secretary’s decision to weaken the dolphin-safe standard, David Brower, Earth Island Institute, The Humane Society of the United States, and other individuals and organizations challenged the finding as arbitrary, capricious, an abuse of discretion, and contrary to law. Brower v. Daley, 93 F. Supp. 2d. 1071 (D.C.N.C.A. 2000). As plaintiffs, they claimed that the Secretary failed to obtain and consider preliminary data from congressionally mandated stress research projects, and failed to determine, whether, on the basis of the best available scientific evidence, the use of purse seine nets were having a significant adverse impact on the depleted dolphin populations. Id. The District Court for the Northern District of California found that the Secretary’s Initial Finding was not in accordance with the law and was an abuse of discretion because the Secretary failed to properly consider these studies. Id. at 1089. The court concluded:
Indeed it would flout the statutory scheme to permit the Secretary to fail to conduct mandated research, and then invoke a lack of evidence as a justification for removing a form of protection for a depleted species, particularly given that the evidence presently available to the Secretary is all suggestive of a significant adverse impact.
The court granted the plaintiff’s motion for summary judgment and set aside the Secretary’s Initial Finding. Id. The Secretary appealed to the Court of Appeals for the Ninth Circuit. See Brower v. Evans, 257 F.3d 1058 (9th Cir. 2001).
On appeal, the Ninth Circuit made three findings. First, the court concluded that the Secretary’s interpretation of the IDCPA was at odds with the statute’s structure. Id. at 1067. Under section 1385(g) of the IDCPA, the Secretary is required to make a finding whether or not the fishery related activities were adversely impacting dolphins. Id. This finding requires a "yes" or a "no" according to the court. The Secretary’s finding of insufficient evidence did not qualify as a yes or no answer. Id.
Second, the court noted that Congress rejected the Panama Declaration language that sought an immediate change in the dolphin-safe label. Id. It found it would be inconsistent with congressional concern to interpret the IDCPA as establishing a new less protective labeling statute. Id.
Finally, finding for the Secretary would lead to absurd results. Id. It would render the stress studies required under the IDCPA irrelevant. Id. "For example, the Secretary could deliberately drag his feet in commencing studies and then conclude there was insufficient evidence to warrant finding a significant adverse impact on the ETP dolphin stocks." Id.
Ultimately, given the best available evidence standard and the IDCPA’s statutory mandate to determine whether or not the chase and netting of dolphins are having significant adverse impact on the depleted dolphin stocks, the Secretary cannot use insufficient evidence as an excuse for failing to comply with the statute. Id. at 1071. By claiming insufficient evidence, the Ninth Circuit found that the Secretary acted contrary to law and abused his discretion and the district court decision was affirmed. Id.
For now, these decisions mean that tuna products containing tuna harvested in the ETP by foreign purse seine vessels may be imported if the nation is in compliance with the IDCP, but the tuna may only be labeled "dolphin-safe" if the tuna is accompanied by a statement from the captain and the observer that no intentional dolphin encirclement occurred during the entire trip, and no dolphin were killed or seriously injured during the set. Id. According to the NMFS, these court decisions may serve as a disincentive to participate in the IDCP because most nations in the ETP fish with large purse seine vessels and use dolphins to help them locate tuna and these decisions block them from importing tuna into the United States. With the potential of significant economic benefit to developing nations trying to import dolphin-safe tuna into the United States hampered, NMFS believes that this court decision may serve as a disincentive to participate in the IDCP, and in the end, to protect the dolphin stocks in the ETP.
On January 3, 2000, the Secretary of Commerce published its Interim-Final rule to implement the IDCPA. 64 F.R. 31806. Included within these regulations are standards by which the Secretary is authorized to lift the tuna embargoes, alter the dolphin-safe labeling standard, and establish an enforcement regime. Under the Final Rule requirements, the Secretary found that Mexico met the requirements of the MMPA and lifted the ban on imports of tuna from Mexico on April 12, 2002. Defenders of Wildlife, 177 F.Supp. at 1336. In Defenders of Wildlife, environmental organizations again sued. The groups contended that the Interim-Final Rule violated the MMPA, as amended by the IDCPA. Id. at 1344.
First, Plaintiffs argued that the Interim-Final Rule violates the MMPA by permitting "sundown sets" upon dolphins, a half hour after sundown, instead of before sundown as stated in the IDCPA. Id. 1344. The Court placed the language of the regulation in the context of twenty-five years of legislative enactments and enforcement, and found that the provision directing sundown sets does not conflict with congressional intent. Id. at 1346.
Second, Plaintiffs contended that the Interim-Final Rule’s embargo provisions are contrary to law. The MMPA, amended by the IDCPA, provides that the "Secretary of the Treasury shall ban the importation of commercial fish or products from fish . . .which results in the incidental kill or incidental serious injury of ocean animals in excess of United States standards." Id. at 1347 (citing 16 U.S.C. § 1371(a)). The regulation permits an exception for "extraordinary circumstances" beyond the control of the nation and the vessel captains for exceeding the dolphin mortality limits for the year if the nation required all its vessels to cease fishing for the remainder of the calendar year. Id. The court found the provision a reasonable interpretation of congressional intent, considering Congress’ delegation of rulemaking power to the Secretary of Commerce in implementing the IDCPA. Id. at 1348.
Third, Plaintiffs claimed that the tracking and verification program under the Rule that divides tuna into dolphin-safe and non-dolphin-safe is not in accordance with law. The tracking and verification program enables the tracking of dolphin-safe and non-dolphin-safe tuna during fishing operations in the ETP by requiring documentation of the date of trip, set number, date of loading, name of vessel, vessel captain’s name, observer’s name, well number, weights by species composition, estimated tons loaded, and date of set on IDCP-approved Tuna Tracking Forms ("TTFs"). Id. at 1352. One TTF is generated for tuna harvested in a dolphin-safe manner, and another is generated for tuna harvested in a non-dolphin-safe manner. Id. Additionally, the regulation requires tracking during both offloading and canning operations and provides several verification requirements. Id. The plaintiffs claim the program has "serious and substantial gaps in the paper trail" and that it is ineffective. Id. The court again found for the defendants on this issue. Id. at 1356.
Finally, Plaintiffs asserted that, contrary to Congressional direction given in the IDCPA, the defendants have refused to implement positive incentives toward reducing dolphin mortality, and have instituted incentives to maintain dolphin mortality at a certain level. Id. The court concluded that the IDCPA outlines goals for progressively reducing dolphin mortality and provides incentives to do so. Id. at 1357. However, neither the IDCP nor the IDCPA requires that the Secretary of Commerce promulgate regulations specifically addressing such incentives.
The plaintiffs’ motion for summary judgment was denied and the action was dismissed.
(Note: The plaintiffs in this case also asserted violations of the National Environmental Policy Act which were also dismissed.)
VIII. Dolphins in the Wild
In January of 2002, the NMFS concluded that the development of a proposed rule that would prevent harassment of marine mammals in the wild from the imposition of human activities might be warranted. 67 F.R. 4379. It acknowledged that dolphins, as well as other marine mammals, in their natural habitat can be an educational experience. However, human interactions with wild marine mammals increase the risk of disturbing and/or injuring marine mammals. Id. at 4380. The NMFS has sought to reveal the threats that dolphins and other marine mammals are faced with today and thus have categorized these threats.
A. Vessel and Land-Based Interactions
Due to the ever growing use of motorized and even and non-motorized vessels in the ocean today, the marine mammal’s world is becoming ever smaller and the likelihood that humans will come in contact them is constantly increasing. For example, NMFS has received various complaints from marine researchers and members of the public who have given eyewitness accounts detailing incidents where motorboats were driving through pods of dolphins or "whale watchers" making attempts to pet and touch grey whales off the coast of California. Other incidents of human contact with marine life include boat pursuits at high rates of speed, in order to encircle and interact with them.
Interactions with marine mammals have increased from land as well. Id. Seals and sea lions, for example, are closely approached by people for the purposes of posing with them for pictures, touching, petting, poking, throwing objects at them to elicit a reaction, or simply to closely observe them. Researchers monitoring the effects of human disturbance on wild marine mammals report boat strikes, disruption of behaviors and social groups, separation of mothers and young, and abandonment of resting areas. Id. In addition, there are significant public safety considerations for people as well. Id. People have been bitten or otherwise seriously injured while trying to pet, approach, feed, swim with, or interact with marine mammals. Id.
B. Swim-With-Dolphin" Activities
Swimming and feedings activities are of the greatest concern to the NMFS and members of the scientific research and wildlife conservation communities. In the United States, there are two primary locations where "Swim-With-Dolphins" activities occur in the wild. The first location is in the southeast, primarily Florida, where these activities target bottlenose dolphins. The second location is the Hawaiian Islands where the activities target spinner dolphins. See "Interactions Between the Public and Wild Dolphins in the United States: Biological concerns and the Marine Mammal Protection Act," Presented at the "Wild Dolphin Swim Program Workshop" held in conjunction with the 13th Biennial Conference on the Biology of Marine Mammals, November 28, 1999.
According to the NMFS, several of the programs in the southeast appear to be enabled by either feeding the dolphins or habituating them to human presence over time. Id. This feeding occurs despite the fact that the MMPA and NMFS regulations specifically prohibit it. See 50 C.F.R. 216.3, 56 F.R. 11693. Even though most commercial operators in the southeast maintain they do not feed wild dolphins, the NMFS is concerned that swim-with-dolphin activities are facilitated by past or present efforts to feed and/or efforts to pursue dolphins for interaction, thereby continuing their habitation to humans. Id.
The swim-with-dolphin programs in Hawaii do not appear to the NMFS to involve the feeding of wild dolphins, but instead encroach on the sensitive habitat areas that dolphins use for resting and sheltering. Id. Spinner dolphins hunt in large groups at night in the deep waters offshore. During the day, they enter shallow coves and bays to rest, socialize, care for their young, and escape predators. Id. Several commercial operators and private citizens have discovered these resting areas and have made a practice of swimming with the dolphins. Id. The NMFS is especially concerned that these human activities are disturbing the behavior of the animals and that they may react by abandoning their historical resting areas. Id.
C. Feeding Wild Dolphins
In response to "feed-the-dolphin" cruises that emerged in the late 1980s the NMFS collected scientific reviews by marine mammal experts outside the NMFS to submit a final report to Congress on the NMFS regulations that include "feeding" in the definition of take under the MMPA. "Report to Congress on Results of Feeding Wild Dolphins: 1989-1994," by the National Marine Fisheries Service, Office of Protected Resources, July 1994. Though feeding activities, such as the "feed-the-dolphin" cruises are now prohibited, the results of the study are pertinent to swim-with-dolphin programs that may or may not be feeding dolphins. The Report to Congress came shortly after the Fifth Circuit decision in Strong v. United States that found that the NMFS had the power to promulgate feeding prohibitions under the MMPA. So while the NMFS realized that feeding cruises would likely revert back to observation cruises, it was concerned with the locations where feeding had been occurring prior to the prohibition. Dolphins were already habituated to accepting food from humans and they continued to beg from private vessels and charter boats for handouts.
The NMFS Report found four fundamental categories of problems observed to result from habitual feeding of wild dolphins by humans:
1) Substantially altering behavior, including foraging for food and migration. Juvenile animals may be especially at risk form alterations in the social structuring and survival skills which are learned in a pod.
An example of altered behavior noted in the Report comes from Corpus Christi, Texas where dolphins habituated to handouts for year have shown changes in behavior between mother-calf pairs. In pods not fed by humans, mothers teach calves how to locate and forage food. The mother calf pairs observed in Corpus Christi are increasingly observed to compete against each other for handouts from vessels. "This goes against all known activities for this species." Id. at 10.
2) The loss of weariness of humans. This not only places the animals at increased risk of injury or death from interaction with vessels, but from intentional harm by individuals who may regard them as pests or threats. The NMFS notes that fishermen and others have been known to shoot at dolphins either for sport or protection of their gear, as was seen in United States v. Hayashi.
In Hilton Head, South Carolina, NMFS enforcement agents noted a case where a "head dolphin" that was released from captivity, has a group of dolphins under his tutelage that routinely approaches boats and "acts" for handouts. There was an documented encounter with a dolphin in this area in which the animal approached a boat, thrusted its body third out of the water and began vigorously shaking its head "similar to what Flipper would do on the television show." The case Officer went on to mention that the dolphin then attempted to propel its body over the side of the vessel nearly capsizing the boat. Id. at 6.
3) Inappropriate or contaminated food. Regardless of any regulation to control the quality and quantity of food, habituated animals, are opportunists and cannot discriminate between professional or amateur offers of food, and vandals may offer food containing foreign objects or poisons.
A researcher in South Carolina reported observing commercial and private vessel feeding dolphins various items, "including fish of various species, squid, shrimp, bologna, bread, soda crackers, candy bars, hard candy, a golf ball, a tennis ball, and other undetermined items." On one occasion he saw a dolphin that was fed squid and bread. Later he observed the dolphins arching its back in a peculiar manner. After investigating, he observed what appeared to be regurgitated material from the dolphin floating in the water. Id. at 13.
4) Increased injuries to humans. Habituated animals become more aggressive as they lose they wariness of humans and compete for handouts. Not only are people who feed them at risk, but also swimmers and other water sport participants may be increased risk from aggressive dolphins in search of a handout. This in turn places the animal at risk of retaliatory behavior from humans.
For example, a dramatic report came out of Sarasota involving a woman who had been feeding a dolphin bait while boating with her family. After she and her 8-year-old son entered the water to cool off, she and her son were attacked, resulting in her receiving 20 stitches in the leg and a week stay in the hospital with a cholera infection. Id. at 14.
See also id. at 6-7, "Flipper’s Myth Proves Harmful," MMPA Bulletin, September/October 1995, available online at http://www.nmfs.noaa.gov/prot_res/PR2/
MMPA_Bulletin/mmpabulletin.html, and "Quantitative Behavioral Study of Bottlenose Dolphins in Swim-With-The-Dolphin Programs in the United States," by Amy Samuels and Trevor Spradlin, Final Report to National Marine Fisheries Service, April 25, 1994 for a discussion of behavioral observations of dolphins in swim-with programs with captive dolphins.
Dolphin feeding advocates argue that feeding activities afford an educational opportunity to observe behavior of these creatures in their natural environment. Id. at 5. They also argue that because commercial feeding operations and feeding dolphins occurs primarily during the summer months rather than year around, any adverse effects of the activities would affect animals only a small portion of the year. Supporting arguments have been made that the animals are migratory and not exposed to human feeding activities during non-summer months. Id. at 8. The NMFS disagrees with dolphin feeding advocates on each of these points.
The MMPA does not provide for a permit or other authorization process to view or interact with wild marine mammals, except for a specific purpose, such as scientific research. 67 F.R. at 4380. Therefore, the NMFS mandates that interactions with wild marine mammals should not be attempted and viewing marine mammals must be conducted in a manned that does not harass the animals. Id. Officially, the NMFS states that it does not condone, authorize, or approve activities that closely interact with marine mammals, which includes swimming with, petting, or touching. Id. The NMFS believes that such interactions constitute "harassment" as defined in the MMPA since they involve acts of pursuit, torment, or annoyance that have the potential to injure or disrupt the behavioral patterns of wild marine mammals. Id.
Undoubtedly, there are situations where wild marine mammals approach people on their own. Each of the five NMFS Regions has, therefore, developed recommended viewing guidelines to educate the public. See NMFS Regional Wildlife Viewing Guidelines for Marine Mammals, http://www.nmfs.noaa.gov/prot_res/MMWatch/MMViewing.html. To support these guidelines, the NMFS initiated a nationwide education and outreach program in 1997. A part of this program is the "Protect the Dolphins" campaign to address growing concerns about feeding and harassment activities. So far, these guidelines have relied on voluntary compliance by the public and commercial operators. 67 F.R. at. 4381. As of yet, there are no final administrative rules regarding human activities directed at wild marine mammals. As the NMFS continues to monitor the growing body of scientific research regarding the effects of such interactions, it is likely that there will be a final rule issued by the Secretary soon.
See http://www.nmfs.noaa.gov/prot_res/MMWatch/protectdolphcamp.html to see the "Protect the Dolphins" Brochure.
IX. Dolphins in Captivity
Animal rights activists often question whether the holding of marine mammals in captivity is justifiable. They often question the morality of keeping marine mammals on public display for our entertainment and economic benefit. Others view them as merely property. Though the NMFS no longer has jurisdiction over requirements for the standard of care for dolphins in captivity, the Secretary must still determine whether a person seeking a public display permit offers a program for education or conservation purposes. Once dolphins have been in captivity, the MMPA also governs the standards under which they may be released.
See Dye, Lavonne "The Marine Mammal Protection Act: Maintaining the Commitment to Marine Mammal Conservation," 43 Case W. Res. 1411 (1993) for an in-depth discussion of the arguments for and against marine mammals in captivity.
A. Public Display Permits under the MMPA
Before the 1994 Amendments to the MMPA, NMFS was charged with specifying in its permits the methods of care and transportation that must be used during and after the capture of marine mammals. 66 F.R. 35209, 35211. NMFS was responsible for including captive care requirements in permits issued to both the initial holders of captured or imported animals and to the recipients of those animals when they were transferred from one facility to another. Id. The 1994 Amendments eliminated NMFS’ jurisdiction over captive care and maintenance of marine mammals held for public display. This responsibility now belongs to the Department of Agriculture, Animal and Plant Health Inspection Service, and is under the exclusive jurisdiction of the Animal Welfare Act ("AWA"). Id. Despite this transfer of responsibility, the NMFS still retains jurisdiction over marine mammals captured from the wild and first-time imports of marine mammals into the United States.
There are three basic public display criteria for a permit to take or import a marine mammal for the purpose of public display: The Secretary may issue a permit to a person who:
- offers a program for education or conservation purposes that is based on professionally recognized standards of the public display community;
- is registered or holds a license under 7 U.S.C. 2131 et seq.[Animal Welfare Act]; and
- maintains facilities for the public display of marine mammals that are open to the public on a regularly scheduled basis and that access to such facilities is not restricted other than by charging and admission fee.
According to the NMFS, there are no uniform "professionally recognized standards" established by the entire public display community. 66 F.R. at 35212. The Alliance of Marine Mammal Parks and Aquariums and the American Zoo and Aquarium Association, together, represent approximately 60 percent of the facilities that hold marine mammals for public display. After the 1994 Amendments, the NMFS asked the two organizations to prepare a list of standards. These standards include things like written education plans, cooperative programs with institutions of higher learning, reference libraries for staff members of a facility, and graphics and exhibits. 59 F.R. 50900.
Once a permit has been issued by the NMFS to take or import a marine mammal for the purpose of public display, the holder the right to transfer the marine mammal from one public display facility to another without obtaining an additional permit or authorization. 16 U.S.C. § 1374(c)(2)(B). However, this right to transfer only applies if the recipient complies with the three basic public display criteria listed above.
A final responsibility of the NMFS under the MMPA is the maintenance of the Marine Mammal Inventory Database. 16 U.S.C. § 1374(10). The database contains information on every captive marine mammal and includes:
- the animal’s name
- estimated birth date or actual birth date
- the day of the acquisition or disposition by the permit holder
- where the animal was acquired from and location of the take from the wild
- if the marine mammal is transferred, the name of the recipient
- if the marine mammal was acquired as a result of a stranding
- date of death
Id. The NMFS must also be notified within 15 days of any transport, purchase, sale or export of a marine mammal, and within 30 days after a birth, death, or escape in order to update and maintain the inventory. Id. at 1374(8)(B).
B. The Release of Captive Dolphins
Releasing captive marine mammals to the wild can be extremely harmful to the both the released animal and wild marine mammal populations. When dolphins and other marine mammals are released to the wild, appropriate safeguards must be in place to ensure their safety. Specific issues of concern include: 1) whether the released animal will be able to adequately forage for food and defend themselves from predators; 2) any behavioral patterns that the animal developed in captivity that could affect the social behavior of wild animals, as well as the social integration of the released animal; and 3) disease transmission and/or unwanted genetic exchange between released animals and wild stocks.
The MMPA requires and the NMFS maintains that any marine mammal release must be conducted with a MMPA scientific research permit to protect the health and welfare of marine mammals. Under the scientific research permit, protocols must be in place that maximize the released animal’s chance of success as well as provide for long-term follow up monitoring and emergency plans in case it is necessary to rescue a released animal.
See 1999-2000 MMPA Annual Report available online at http://www.nmfs.noaa.gov /prot_res/PR2/MMPA_Annual_Report/annualreport.html
In 1999, civil penalties in the amount of $59,500 were assessed for the release of two dolphins from captivity. In the Matter of: Richard O’Barry, Lloyd A. Good, III, Sugarloaf Dolphin Sanctuary, Inc., The Dolphin Project, Inc., 1999 NOAA LEXIS 1 (1999). The dolphins were not prepared to survive in the wild and sustained life-threatening injuries as a result of their release. An administrative law judge found that the release of two dolphins without providing them with the necessary skills for survival resulted in harassment and injury to them, and therefore, constituted a violation of the MMPA. Id.
The two dolphins, "Luther" and "Buck," had been in captivity for almost 10 years as a part of the United States Navy’s marine mammal program. They were transferred to the Sugarloaf Dolphin Sanctuary in 1994. Id. at 20. The sanctuary was intended to offer a home for unwanted captive dolphins and was begun by the former "Flipper" dolphin trainer Richard O’Barry and his associate Lloyd A. Good, III. Although the sanctuary had the necessary permits to have the dolphins on public display, the required scientific permit for releasing them to the wild was never obtained or requested. Id.
The respondents O’Barry and Good released the eventually decided to release the dolphins due a deteriorating relationship with the NMFS. Id. The dolphins were loaded into a motorboat and driven about six miles north of Key West and dumped overboard. Id. A short time after the boat left the sanctuary, the NMFS was notified and the Coast Guard and the Florida Marine Patrol were alerted and the search for the dolphins began. Id.
The day after the release, a "friendly" dolphin was seen in Key West near a hotel. It was Luther. He was appeared in a congested marina approaching people and begging for food from passing boats. Id. at 32. Id. It was reported that he looked thin and had a series of lacerations on his right side. Id. at 33. A biologist who arrived on the scene concluded that Luther was in distress and needed medical attention. Id. Four days after his release, Luther was observed begging for food at another marina. A plastic garbage bag was entangled in his dorsal fin. An attempt was made to recapture Luther, but he eluded capture at this point. Id. at 34. On the following day, Luther was observed near Boca Chica Naval Station swimming in pens and was captured when the gates to the entrance closed. Id.
Buck was not seen until a week after his release. The Dolphin Research Center at Grassy Key was notified that a friendly dolphin approached a boat, 80 miles west of Key West. Id. at 35. A woman also reported that a she swam with a friendly dolphin that let her pet his belly. The Dolphin Research Center responded immediately and placed a pinger in the water. Buck appeared almost instantly and he was secured. Id.
With the help of the Coast Guard, and the Florida Marine Patrol, the NMFS successfully rescued the dolphins and provided them with the veterinary care they so desperately needed. A veterinarian examined Luther and found him to be underweight, cut from boat propellers in thee places, dehydrated, and sleep deprived. Id. at 36. He found Luther’s condition to be fair and poor in terms of nutrition and felt that his condition would have deteriorated without intervention. Id. The doctor that examined Buck found that he was also significantly underweight and had several large infected lacerations on his body. He found Buck’s condition overall to be poor. A second veterinarian that examined the dolphins concluded that releasing the dolphins was inappropriate and should be considered inhumane. Id. at 38. Two other dolphins in the Sanctuary were seized and relocated immediately after the Secretary suspended the Sanctuary’s license. Id.
C. Stealing Dolphins from Captivity Is Not a Lesser of Two Evils
Hawaii v. Le Vasseurhas been called the first case of animal liberation in the United States. See "Animal Liberation and the Law: Animals Board the Underground Railroad," Laura G. Kniaz, 43 Buffalo L. Rev. 765, Winter, 1995 (citing People for the Ethical Treatment of Animals, History of American Animal Liberation Actions (Apr. 24, 1993)).
In 1977, Kenneth Le Vasseur and four or five other people removed two dolphins from the University of Hawaii laboratory and released them into the ocean. Hawaii v. Le Vasseur, 613 P.2d 1328, 1330 (1980). Le Vasseur had worked at the university laboratory for two years prior to the theft where he was responsible for feeding the dolphins, and repairing and cleaning their tanks. Id. Le Vasseur testified that his intention was to give the dolphins freedom of choice as to whether or not they returned to captivity. Id. at 1331. When the dolphins were freed, a message was left at the laboratory identifying the activists as the "Undersea Railroad." 43 Buffalo L. Rev. at 808.
Following a jury trial, Le Vasseur was convicted and sentenced to five years probation with the special condition that he serve six months in jail. A central issue on appeal was whether a "choice of evils" defense was properly denied to the defendant. Id. at 1332.
In the state of Hawaii, the choice of evils defense is defined by statute as:
1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to himself or to another is justifiable provided that:
- The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and
- Neither the Code not the other law defining the office provides exceptions or defenses dealing with the specific situation involved; and
- A legislature purpose to exclude the justification does not otherwise plainly appear. Id. (citing HRS 703-302.)
Appellant Le Vasseur argued on appeal that because the dolphins were included in a "specific situation" for which "neither the Code not the law defining the offense of theft provides exceptions or defenses," they should be considered to be "another." The court did not accept this argument because it found "another" defined as a natural person, a corporation, or when relevant, an unincorporated association. It found the statute makes it clear that a dolphin is not "another." Id. at 1333.
Next, the appellant argued that his actions protected the United States, which is "another," by enforcing its policy of protecting dolphins under the MMPA and the AWA. Id. The court recognized that the policy of the AWA is to protect animals with basic comforts of adequate housing, ample food and water, reasonable handling, decent sanitation, shelter from extreme weather and temperature and adequate veterinary care. Id. But, the court found that the appellant consciously and deliberately chose theft as opposed to contacting the federal government or making any other attempt to report what he believed to be life-threatening conditions at the laboratory. Id. The court of appeals agreed with the trial court’s denial of the choice of evils defense and found the sentence appropriate. Id. at 1335. The trial court instructed the jury that the dolphins were "property" and despite the fact that many well-respected members of the community submitted to the trial court that they believed Le Vasseur was motivated by a sincere desire to protect the dolphins, the court characterized the case as "vigilante action that destroyed costly research." Id.
See also Steven M. Wise, Drawing the Line, (Perseus Books, 2002) p. 35-40 for a discussion of Hawaii v. Le Vasseur and a follow up on the case and parties; see also http://www.whales.org.au/home.html for reports, stories, and views on dolphins and whales, including an article by Kenneth W. Le Vasseur on dolphins in captivity.
X. Proposed Amendments for 2002
The MMPA has been the primary regulatory force protecting dolphins for the last three decades. Through agency regulations, amendments, and reauthorizations the MMPA continues to evolve. As recently as May of 2002, a bill to reauthorize the MMPA was referred to the House Committee on Resources. H.R. 4781, 107th Cong., 2d. Sess. (2002). As of July 25, 2002 the bill was approved for full committee action as amended. Id. The bill requires, among other things, reduction plans to track the number of animals being incidentally taken or seriously injured each year through recreation fishing, similar to those already in effect for commercial fishing. Id. Addressing the harmful consequences that result from the release of a captive dolphin, the proposed bill also makes it unlawful for anyone under U.S. jurisdiction to release a captive marine mammal unless authorized under specific provisions of the code. Id. Whether these provisions, and others like them, will continue to be added to MMPA in order to protect dolphins, and other marine mammals, above commercial and economic interests is a question for the future.
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