B-198126.OM, AUG 20, 1980

B-198126.OM: Aug 20, 1980

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SHARER: ATTACHED IS THE REQUESTED LEGAL ANALYSIS FOR USE IN YOUR REPORT ON MARINE MAMMAL MANAGEMENT. WE HAVE INCLUDED POTENTIAL RECOMMENDATIONS WHICH. WAS PASSED IN RESPONSE TO GROWING CONCERN OVER THE SURVIVAL AND WELL-BEING OF MARINE MAMMALS. THE MMPA WAS ENACTED. THERE ARE. THE SECRETARY OF COMMERCE OR OF THE INTERIOR IS ALSO AUTHORIZED TO WAIVE THE REQUIREMENTS OF MMPA AND ISSUE PERMITS TO ALLOW TAKING OR IMPORTING MAMMALS TO THE EXTENT CONSISTENT WITH THE PURPOSES OF THE ACT. 16 U.S.C. 1371. EITHER OF THE SECRETARIES MAY RETURN MARINE MAMMAL MANAGEMENT OF A PARTICULAR SPECIES OR POPULATION STOCK TO A STATE IF THE SECRETARY WHO HAS JURISDICTION OVER THAT SPECIES DETERMINES THAT THE STATE HAS ADOPTED A PROGRAM FOR THE PROTECTION AND TAKING OF THAT SPECIES OR POPULATION STOCK THAT IS CONSISTENT WITH THE PROVISIONS OF THE MMPA AND WITH THE PERTINENT REGULATIONS ISSUED THEREUNDER.

B-198126.OM, AUG 20, 1980

SUBJECT: MARINE MAMMAL PROTECTION (CODE 082093; FILE B-198126)

TEAM LEADER, CED - RALPH C. SHARER:

ATTACHED IS THE REQUESTED LEGAL ANALYSIS FOR USE IN YOUR REPORT ON MARINE MAMMAL MANAGEMENT. WE HAVE INCLUDED POTENTIAL RECOMMENDATIONS WHICH, BASED ON YOUR AUDIT FINDINGS, YOU MIGHT WANT TO CONSIDER.

ATTACHMENT

MARINE MAMMAL MANAGEMENT PROBLEMS UNDER PRESENT LAW

DIGEST:

DISCUSSION OF PROBLEMS UNDER MARINE MAMMAL PROTECTION ACT AND OTHER LAWS IMPACTING ON MARINE MAMMAL MANAGEMENT.

INTRODUCTION

THE MARINE MAMMAL PROTECTION ACT OF 1972 (MMPA), 16 U.S.C. 1361 ET SEQ., WAS PASSED IN RESPONSE TO GROWING CONCERN OVER THE SURVIVAL AND WELL-BEING OF MARINE MAMMALS. SEE H.R. REP. NO. 92-707, PP. 11-21 (1971), AND S. REP. NO. 92-863, PP. 1-6 (1972). THE CONGRESSIONAL COMMITTEES CONSIDERING THE MMPA BEFORE ITS ENACTMENT CITED SUCH DISTURBING FACTORS AS THE LACK OF SUCCESS OF THE INTERNATIONAL WHALING COMMISSION IN CONTROLLING COMMERCIAL WHALE HUNTING AND THE INCIDENTAL KILLING OF PORPOISES BY TUNA FISHERMEN. ID. IN ORDER TO PROTECT MARINE MAMMALS AGAINST MAN'S ACTIVITIES AND PREVENT DEPLETION OF POPULATION STOCKS, THE MMPA WAS ENACTED. ID. SEE, ALSO, 16 U.S.C. 1361; AND COMMITTEE FOR HUMANE LEGISLATION, INC. V. RICHARDSON, 414 F. SUPP. 297 (D.D.C. 1976), AFF'D, 540 F.2D 1141 (D.C. CIR. 1976).

THE MMPA PROTECTS MARINE MAMMALS BY ESTABLISHING A MORATORIUM ON THE TAKING (DEFINED AS HARASSING, HUNTING, CAPTURING OR KILLING, OR ATTEMPTING ANY OF THESE ACTS) AND IMPORTING OF MARINE MAMMALS AND MARINE MAMMAL PRODUCTS, 16 U.S.C. 1371(A) AND 1372, AND IT SUSPENDS STATE MANAGEMENT OF MARINE MAMMALS BY PREEMPTING STATE REGULATION OF THE TAKING OF MARINE MAMMALS. 16 U.S.C. 1379(A)(1) AND FOUKE COMPANY V. MANDEL, 386 F. SUPP. 1341 (D.MD. 1974). THERE ARE, HOWEVER, PROVISIONS FOR EXEMPTIONS FROM, EXCEPTIONS TO, AND WAIVERS OF THE MORATORIUM. THE ACT PROVIDES A SPECIAL EXEMPTION FOR TAKING OF MARINE MAMMALS BY CERTAIN NATIVES FOR SUBSISTENCE OR FOR CREATING AND SELLING HANDICRAFTS AND CLOTHING. IT PROVIDES EXCEPTIONS FOR TAKING FOR SCIENTIFIC RESEARCH AND PUBLIC DISPLAY WHERE THE SECRETARY OF COMMERCE OR OF THE INTERIOR (DEPENDING UPON THE SPECIES OF MARINE MAMMAL) ISSUES A PERMIT BASED ON THE RECOMMENDATIONS OF THE MARINE MAMMAL COMMISSION AND THE COMMITTEE OF SCIENTIFIC ADVISERS. THE SECRETARY OF COMMERCE OR OF THE INTERIOR IS ALSO AUTHORIZED TO WAIVE THE REQUIREMENTS OF MMPA AND ISSUE PERMITS TO ALLOW TAKING OR IMPORTING MAMMALS TO THE EXTENT CONSISTENT WITH THE PURPOSES OF THE ACT. 16 U.S.C. 1371. FURTHER, EITHER OF THE SECRETARIES MAY RETURN MARINE MAMMAL MANAGEMENT OF A PARTICULAR SPECIES OR POPULATION STOCK TO A STATE IF THE SECRETARY WHO HAS JURISDICTION OVER THAT SPECIES DETERMINES THAT THE STATE HAS ADOPTED A PROGRAM FOR THE PROTECTION AND TAKING OF THAT SPECIES OR POPULATION STOCK THAT IS CONSISTENT WITH THE PROVISIONS OF THE MMPA AND WITH THE PERTINENT REGULATIONS ISSUED THEREUNDER.

THE MMPA ESTABLISHED THE MARINE MAMMAL COMMISSION TO OVERSEE FEDERAL ACTIVITIES RELATED TO MARINE MAMMAL CONSERVATION AND PROTECTION (I.E. MANAGEMENT). 16 U.S.C. 1401 ET SEQ. THE ACT DIRECTS THE SECRETARY OF COMMERCE (WHO HAS DELEGATED THIS RESPONSIBILITY TO THE NATIONAL MARINE FISHERIES SERVICE) AND THE SECRETARY OF THE INTERIOR (WHO HAS DELEGATED THIS RESPONSIBILITY TO THE FISH AND WILDLIFE SERVICE) TO CARRY OUT THE CONSERVATION AND PROTECTION PROVISIONS OF THE ACT. THE ACT MANDATES THAT THE TWO AGENCIES SEPARATELY PERFORM THE SAME DUTIES FOR THE ANIMALS PLACED UNDER THEIR RESPECTIVE JURISDICTIONS. THESE DUTIES INCLUDE: DECISIONS AND ACTIONS ON REQUESTED WAIVERS OF THE MMPA MORATORIUM; ISSUANCE OF PERMITS FOR SCIENTIFIC RESEARCH AND PUBLIC DISPLAY; PROMULGATION OF REGULATIONS ON TAKING MARINE MAMMALS; ENFORCEMENT OF THE ACT'S PROVISIONS AND RELEVANT FEDERAL REGULATIONS; RESEARCH AND SURVEYS TO DETERMINE THE STATUS OF THESE STOCKS; LIAISON WITH THE MARINE MAMMAL COMMISSION AND CONGRESSIONAL COMMITTEES; COOPERATION WITH THE STATES; AND INTERNATIONAL ACTIVITIES AND AGREEMENTS TO CONSERVE AND MANAGE MARINE MAMMALS.

JURISDICTION IS SPLIT BETWEEN THE SECRETARIES OF COMMERCE AND OF THE INTERIOR AS FOLLOWS: THE SECRETARY OF COMMERCE HAS THE "RESPONSIBILITY, AUTHORITY, FUNDING AND DUTIES UNDER THIS (ACT) WITH RESPECT TO THE MEMBERS OF THE ORDER CETACEA (E.G. WHALES, DOLPHINS, AND PORPOISES) AND MEMBERS, OTHER THAN WALRUSES, OF THE ORDER PINNIPEDIA (E.G. SEALS)"; AND THE SECRETARY OF THE INTERIOR HAS THE "RESPONSIBILITY, AUTHORITY, FUNDING, AND DUTIES UNDER THIS (ACT) WITH RESPECT TO ALL OTHER MARINE MAMMALS (E.G. WALRUSES, SEA OTTERS, POLAR BEARS AND MANATEES) COVERED BY THIS (ACT)." 16 U.S.C. 1362(12). THE ISSUE OF SPLIT JURISDICTION IS FURTHER COMPLICATED WHERE, AS IN THE CASE OF THE HAWAIIAN MONK SEAL, THE DEPARTMENT OF COMMERCE HAS JURISDICTION OVER A MAMMAL WHILE IT IS IN THE WATER, AND THE DEPARTMENT OF THE INTERIOR HAS JURISDICTION OVER IT WHEN IT IS ON LAND THAT IS PART OF A NATIONAL WILDLIFE REFUGE.

ALTHOUGH JURISDICTION WAS THUS DIVIDED BETWEEN TWO AGENCIES, IT WAS EXPECTED THAT ULTIMATELY AUTHORITY OVER MAMMALS WOULD BE CONSOLIDATED WITHIN ONE AGENCY. SEE H.R. REP. NO. 92-707, P. 13 (1971) AND S. REP. NO. 92-863, PP. 8-9 (1972). ACCORDING TO THE SENATE REPORT, AT PAGE 9, JURISDICTION WAS SPLIT BECAUSE EACH OF THE AGENCIES WAS BETTER EQUIPPED TO DEAL WITH DIFFERENT MAMMALS. HOWEVER, BOTH THE HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES AND THE SENATE COMMITTEE ON COMMERCE EXPECTED THE FORMATION OF A NEW AGENCY, DEALING WITH THE NATURAL RESOURCES OF THE NATION, WHICH WOULD ASSUME MANAGEMENT OF ALL MARINE MAMMALS. SEE HOUSE REPORT AT P. 13 AND SENATE REPORT AT P. 9. BOTH COMMITTEES EXPRESSED A DESIRE TO REEXAMINE THE ISSUE OF CONSOLIDATING MARINE MAMMAL MANAGEMENT WITHIN A SINGLE AGENCY IF A DEPARTMENT FOR NATURAL RESOURCES WAS NOT FORMED WITHIN A REASONABLE TIME. ID.

OTHER LAWS AFFECTING MARINE MAMMALS

IN ADDITION TO THE MMPA, SEVERAL OTHER LAWS SIGNIFICANTLY AFFECT MANAGEMENT OF MARINE MAMMALS. THEY ARE: (1) THE ENDANGERED SPECIES ACT OF 1973, 16 U.S.C. 1531 ET SEQ.; (2) THE FISHERY CONSERVATION AND MANAGEMENT ACT OF 1976, 16 U.S.C. 1801 ET SEQ.; AND (3) TITLE III OF THE MARINE PROTECTION, RESEARCH AND SANCTUARIES ACT OF 1972, 16 U.S.C. 1431 ET SEQ. THE ENDANGERED SPECIES ACT WAS ENACTED TO PROVIDE A MEANS FOR CONSERVING THE ECOSYSTEMS THAT INCLUDE SPECIES OF PLANTS AND FISH AND WILDLIFE, INCLUDING MARINE MAMMALS, THREATENED WITH OR IN DANGER OF EXTINCTION, AND TO PROVIDE A PROGRAM FOR THE CONSERVATION OF SUCH THREATENED AND ENDANGERED SPECIES. IT PROHIBITS, AMONG OTHER THINGS, TAKING, IMPORTING, EXPORTING, POSSESSING OR TRANSPORTING ENDANGERED SPECIES. THE SECRETARIES OF COMMERCE AND OF THE INTERIOR ARE DIRECTED TO DETERMINE WHICH SPECIES UNDER THEIR RESPECTIVE JURISDICTIONS ARE THREATENED OR ENDANGERED, AND TO ISSUE REGULATIONS TO CONSERVE SUCH SPECIES. 16 U.S.C. 1533. THE SECRETARIES ARE ALSO TO DETERMINE AREAS OF CRITICAL HABITAT FOR THESE SPECIES - I.E., GEOGRAPHIC AREAS THAT ARE ESSENTIAL TO THE CONSERVATION OF PARTICULAR THREATENED OR ENDANGERED SPECIES. 16 U.S.C. 1533(A)(1), (C)(1). FEDERAL AGENCIES ARE TO INSURE THAT THEIR ACTIONS DO NOT JEOPARDIZE THREATENED OR ENDANGERED SPECIES OR ADVERSELY AFFECT THE CRITICAL HABITAT OF ANY SUCH SPECIES. 16 U.S.C. 1536(A)(2).

THE FISHERY CONSERVATION AND MANAGEMENT ACT PROVIDES A FRAMEWORK FOR MANAGING FISHERY RESOURCES WITHIN TWO HUNDRED MILES OF THE U. S. COAST. IT PROVIDES FOR REGULATION OF FISHING TO PREVENT DEPLETION OF FISH FROM OVERFISHING AND IS CARRIED OUT VIA A SERIES OF REGIONAL FISHERY MANAGEMENT PLANS ADMINISTERED BY REGIONAL FISHERY MANAGEMENT COUNCILS COMPOSED OF STATE AND FEDERAL OFFICIALS AND SELECTED INDIVIDUALS FROM VARIOUS STATES. FISHERY MANAGEMENT PLANS ARE TO INCLUDE, AMONG OTHER THINGS, CONSERVATION AND MANAGEMENT MEASURES TO PREVENT OVERFISHING WHILE ACHIEVING "OPTIMUM YIELD" FROM EACH FISHERY. 16 U.S.C. 1851(A)(1), 1853(A)(1). (THE MEANING AND SIGNIFICANCE OF "OPTIMUM YIELD" IS DISCUSSED BELOW.) FURTHER, FISHERY PLANS MUST BE CONSISTENT WITH OTHER APPLICABLE LAWS, PRESUMABLY INCLUDING THE MMPA. 16 U.S.C. 1853(A)(1)(C).

TITLE III OF THE MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT AUTHORIZES THE SECRETARY OF COMMERCE TO TAKE ACTION TO PROTECT THE MARINE ENVIRONMENT IN SELECTED AREAS OF THE OCEANS (AND OTHER COASTAL WATERS) BY DESIGNATING THEM AS MARINE SANCTUARIES. 16 U.S.C. 1432. THE SECRETARY MAY DESIGNATE AS MARINE SANCTUARIES AREAS OF WATERS "WHICH HE DETERMINES NECESSARY FOR THE PURPOSE OF PRESERVING OR RESTORING SUCH AREAS FOR THEIR CONSERVATION, RECREATIONAL, ECOLOGICAL, OR ESTHETIC VALUES." 16 U.S.C. 1432(A). FOR EXAMPLE, A SANCTUARY FOR THE HUMPBACK WHALE IS BEING CONSIDERED IN THE SOUTH PACIFIC. ONCE THE SANCTUARY HAS BEEN DESIGNATED, THE SECRETARY IS TO ISSUE REGULATIONS, CONSISISTENT WITH THE PURPOSE OR PURPOSES OF THE SANCTUARY, TO CONTROL ACTIVITIES WITHIN IT. 16 U.S.C. 1432(F).

OVERLAP BETWEEN MMPA AND ENDANGERED SPECIES ACT

THE MMPA AND THE ENDANGERED SPECIES ACT DUPLICATE EACH OTHER IN THE PROTECTION PROVIDED MARINE MAMMALS LISTED AS THREATENED OR ENDANGERED UNDER THE ENDANGERED SPECIES ACT. AS DISCUSSED ABOVE, BOTH ACTS PROVIDE FOR CONSERVATION AND PROTECTION MEASURES TO BE TAKEN TO PROTECT THESE SPECIES. THERE APPEARS TO BE WASTED EFFORT IN THIS RESPECT IN MANAGING MARINE MAMMALS. THE ENDANGERED SPECIES ACT DOES NOT AFFORD ANY PROTECTION TO THREATENED OR ENDANGERED MARINE MAMMALS THAT IS NOT OR COULD NOT BE MADE AVAILABLE UNDER THE MMPA. AS A MATTER OF FACT, MORE RESTRICTIVE PROVISIONS OF THE MMPA TAKE PRECEDENCE OVER CONFLICTING PROVISIONS OF THE ENDANGERED SPECIES ACT. 16 U.S.C. 1543.

BESIDES PROVIDING FOR GENERAL MEASURES TO BE TAKEN TO CONSERVE AND PROTECT MARINE MAMMALS, THE MMPA HAS A PROCESS, SIMILAR TO LISTING A SPECIES AS THREATENED OR ENDANGERED UNDER THE ENDANGERED SPECIES ACT, FOR DECLARING A SPECIES OF MARINE MAMMAL TO BE DEPLETED. SEE 16 U.S.C. 1362(1). DEPLETED SPECIES OR POPULATION STOCKS RECEIVE MORE PROTECTION THAN OTHER MAMMALS UNDER THE MMPA IN THAT TAKING OF THEM IS MORE RESTRICTED. SEE 16 U.S.C. 1371(A)(3)(B). DEPLETED MEANS THAT THE NUMBER OF INDIVIDUALS WITHIN A SPECIES OR POPULATION STOCK (PART OF A SPECIES THAT LIVE TOGETHER) HAS DECLINED SIGNIFICANTLY OVER A PERIOD OF YEARS OR HAS OTHERWISE DECLINED TO THE POINT WHERE IT IS HEADED TOWARD BEING THREATENED OR ENDANGERED. THUS, A SPECIES COULD BE AND SHOULD BE DECLARED DEPLETED BEFORE BECOMING THREATENED OR ENDANGERED. SINCE MARINE MAMMALS DECLARED THREATENED OR ENDANGERED UNDER THE ENDANGERED SPECIES ACT ARE NO BETTER PROTECTED THAN MAMMALS DECLARED DEPLETED UNDER THE MMPA, THE THREATENED OR ENDANGERED DECLARATION DOES NOT GIVE PROTECTION THAT IS NOT AVAILABLE UNDER THE MMPA.

THE PROVISION IN THE ENDANGERED SPECIES ACT FOR PROTECTING CRITICAL HABITATS OF THREATENED AND ENDANGERED SPECIES FROM FEDERAL ACTIONS (SEE 16 U.S.C. 1536(A)(2)) DOES NOT PROVIDE UNIQUE PROTECTION FOR MARINE MAMMALS. ALTHOUGH THERE IS NO SPECIFIC PROVISION UNDER THE MMPA FOR PROTECTING THE HABITAT OF MARINE MAMMALS, THE POLICY SECTION, 16 U.S.C. 1361, CALLS FOR EFFORTS TO BE MADE TO PROTECT THE ROOKERIES, MATING GROUNDS, AND AREAS OF SIMILAR SIGNIFICANCE FOR EACH SPECIES, AND STATES THAT THE PRIMARY OBJECTIVE OF MARINE MAMMAL MANAGEMENT SHOULD BE TO MAINTAIN THE HEALTH AND STABILITY OF THE MARINE ECOSYSTEM. SINCE ANOTHER SECTION OF THE MMPA, 16 U.S.C. 1373(A), DIRECTS THE RESPONSIBLE SECRETARY TO PRESCRIBE REGULATIONS CONSISTENT WITH THE PURPOSES AND POLICIES OF THAT ACT, IT WOULD APPEAR THAT THERE IS ADEQUATE AUTHORITY UNDER THE MMPA TO PROMULGATE REGULATIONS TO PROTECT MAMMAL HABITATS FROM NON-FEDERAL, AS WELL AS FEDERAL ACTIONS. AND PROTECTION UNDER THE MMPA IS NOT LIMITED TO THREATENED OR ENDANGERED MAMMALS.

THE ENDANGERED SPECIES ACT ACTUALLY HAS BEEN A SOURCE OF PROBLEMS REGARDING MAMMAL MANAGEMENT IN HAWAII. IT HAS HINDERED FEDERAL MANAGEMENT OF THE MONK SEAL, AN ENDANGERED SPECIES. THE ENDANGERED SPECIES ACT PROVIDES THAT STATE LAWS AND REGULATIONS RESPECTING THE TAKING OF A THREATENED OR ENDANGERED SPECIES MAY BE MORE RESTRICTIVE THAN THE EXEMPTIONS OR PERMITS PROVIDED FOR IN THE ENDANGERED SPECIES ACT. U.S.C. 1535(F). BECAUSE OF THIS PROVISION, THE NATIONAL MARINE FISHERIES SERVICE FELT OBLIGATED TO APPLY FOR A PERMIT FROM THE STATE OF HAWAII BEFORE BEGINNING ITS PLANNED RESEARCH OF THE MONK SEAL. THE STATE OF HAWAII DENIED THE APPLICATION FOR A RESEARCH PERMIT BECAUSE IT WAS "CONTRARY TO STATE LAW AND REGULATIONS GOVERNING THE PROTECTION AND CONSERVATION OF THE HAWAII SEALS" IN THAT THE PROPOSED ACTIVITIES "COULD FURTHER JEOPARDIZE THE EXISTENCE OF AN ENDANGERED SEAL POPULATION." SEE LETTER OF DECEMBER 24, 1979, FROM THE HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES TO THE DIRECTOR, NORTHWEST AND ALASKA FISHERIES SERVICE, NATIONAL MARINE FISHERIES SERVICE. THE NATIONAL MARINE FISHERIES SERVICE, WHICH FEELS COMPELLED UNDER THE ENDANGERED SPECIES ACT TO ABIDE BY THE STATE'S PERMIT REFUSAL, IS NOW CONSIDERING ALTERNATIVE SITES FOR ITS PROPOSED RESEARCH. SEE NOAA MEMO OF APRIL 29, 1980, FROM BROOKS BOWEN TO BETH MITCHELL. THIS TYPE OF PROBLEM SEEMS TO BE DISRUPTIVE OF MARINE MAMMAL MANAGEMENT. IF THE MONK SEAL WERE NOT AN ENDANGERED SPECIES UNDER THE ESA, THE FEDERAL GOVERNMENT WOULD HAVE BEEN ABLE TO CARRY OUT ITS RESEARCH WITHOUT PERMISSION FROM THE STATE, AND MANAGEMENT OF THE MONK SEAL WOULD HAVE BEEN MORE COHESIVE. CONFLICT BETWEEN MMPA AND FISHERY CONSERVATION AND MANAGEMENT ACT?

ALTHOUGH IT CAN BE ARGUED THAT THE MMPA AND THE FISHERY CONSERVATION AND MANAGEMENT ACT WORK TOGETHER, THE BASIC OBJECTIVES OF THE TWO ACTS APPEAR INEVITABLY TO CONFLICT. BASED ON PROVISIONS OF THE MMPA AND THE FISHERY CONSERVATION AND MANAGEMENT ACT DISCUSSED BELOW, IT CAN BE ARGUED THAT BOTH ACTS ARE AIMED PRIMARILY AT THE MARINE ECOSYSTEM AS A WHOLE AND THUS MESH TOGETHER - I.E. BEFORE CARRYING OUT THE OBJECTIVES OF EITHER ACT, THE EFFECT ON THE ENTIRE MARINE ECOSYSTEM MUST BE CONSIDERED. THUS, IT COULD BE ARGUED, MARINE MAMMAL MANAGEMENT MEASURES MUST TAKE INTO ACCOUNT THE POTENTIAL IMPACT THEY WILL HAVE ON FISH, AND VICE VERSA, RESULTING IN A BALANCING OF INTERESTS. HOWEVER, THE MMPA, ON THE ONE HAND, STRIVES TO OBTAIN THE MOST DESIRABLE MAMMAL POPULATION (REFERRED TO AS "OPTIMUM SUSTAINABLE POPULATION"); AND THE FISHERY CONSERVATION AND MANAGEMENT ACT, ON THE OTHER HAND, SEEKS TO MAINTAIN FISH POPULATIONS AT THE OPTIMUM LEVEL FOR PURPOSES OF FISHING WITHOUT EXHAUSTING THE SUPPLY (REFERRED TO AS "OPTIMUM YIELD"). IF MAMMALS FEED ON SOME FISH AND COMPETE WITH OTHER FISH FOR FOOD, IT WOULD SEEM THAT THE OBJECTIVES OF ONE OF THE ACTS MUST GIVE WAY TO THE OTHER AT SOME POINT. SINCE THE FISHERY CONSERVATION AND MANAGEMENT ACT PROVIDES THAT FISHERY PLANS MUST BE CONSISTENT WITH OTHER APPLICABLE LAWS (PRESUMABLY INCLUDING THE MMPA), THE OBJECTIVES OF THE FISHERY CONSERVATION AND MANAGEMENT ACT, ARGUABLY, MUST GIVE WAY TO THOSE OF THE MMPA WHERE BOTH CANNOT BE SATISFIED. 16 U.S.C. 1853(A)(1)(C). AND IT IS POSSIBLE THAT SITUATIONS WILL ARISE WHERE BOTH CANNOT BE SATISFIED.

THE MMPA STATES THAT THE PRIMARY OBJECTIVE OF MARINE MAMMAL MANAGEMENT SHOULD BE TO MAINTAIN THE HEALTH AND STABILITY OF THE MARINE ECOSYSTEM AND, WHENEVER CONSISTENT WITH THIS PRIMARY OBJECTIVE, TO OBTAIN AND MAINTAIN OPTIMUM SUSTAINABLE POPULATIONS OF MARINE MAMMALS. 16 U.S.C. 1361(6). HOWEVER, THE RELEVANT HOUSE AND SENATE REPORTS, H.R. REP. 92-707 (1971) AND S. REP. 92-863 (1972), IN DESCRIBING THE PURPOSE OF THE MARINE MAMMAL PROTECTION ACT, TALK NOT IN TERMS OF PROTECTING THE MARINE ECOSYSTEM, BUT IN TERMS OF PROTECTING MARINE MAMMALS. IN EXPLAINING THE REASON BEHIND STATING THE PRIMARY OBJECTIVE OF MARINE MAMMAL MANAGEMENT TO BE THE HEALTH AND STABILITY OF THE MARINE ECOSYSTEM, THE HOUSE REPORT, AT P. 22, SAID THAT DOING SO INDICATED "THAT THE ANIMALS MUST BE MANAGED FOR THEIR BENEFIT AND NOT FOR THE BENEFIT OF COMMERCIAL EXPLOITATION."

THE ACT DEFINES "OPTIMUM SUSTAINABLE POPULATION" AS:

"THE NUMBER OF ANIMALS WHICH WILL RESULT IN THE MAXIMUM PRODUCTIVITY OF THE POPULATION OR THE SPECIES, KEEPING IN MIND THE OPTIMUM CARRYING CAPACITY OF THE HABITAT AND THE HEALTH OF THE ECOSYSTEM OF WHICH THEY FORM A CONSTITUTENT ELEMENT." 16 U.S.C. 1362(9).

"OPTIMUM CARRYING CAPACITY" IS DEFINED IN THE ACT AS:

"THE ABILITY OF A GIVEN HABITAT TO SUPPORT THE OPTIMUM SUSTAINABLE POPULATION OF A SPECIES OR POPULATION STOCK IN A HEALTHY STATE WITHOUT DIMINISHING THE ABILITY OF THE HABITAT TO CONTINUE THAT FUNCTION." U.S.C. 1362(8).

BASED ON THE ABOVE DESCRIBED REFERENCES IN THE MMPA TO THE MARINE ECOSYSTEM, ONE MIGHT ARGUE THAT MANAGEMENT OF THE MARINE MAMMALS MUST BE CONSISTENT WITH MAINTAINING THE HEALTH AND STABILITY OF FISH, WHICH ARE PART OF THE MARINE ECOSYSTEM. WHILE IT IS TRUE THAT MARINE MAMMAL MANAGEMENT MUST GENERALLY BE CONSISTENT WITH MAINTAINING THE MARINE ECOSYSTEM AS A WHOLE, THIS DOES NOT MEAN THAT THE INTERESTS OF THE MAMMALS MUST BE BALANCED AGAINST EACH COMPETING INTEREST, SUCH AS FISH, WHICH IS PART OF THE ECOSYSTEM. MEASURES DESIGNED TO PROTECT MARINE MAMMALS SHOULD NOT BE DAMAGING TO THE MARINE ECOSYSTEM AS A WHOLE, BUT THERE IS NO REASON WHY THEY MAY NOT PLACE THE INTERESTS OF THE MAMMALS OVER (AND TO THE DETRIMENT OF) A SINGLE COMPETING INTEREST SUCH AS FISH.

IN COMMITTEE FOR HUMANE LEGISLATION V. RICHARDSON, 414 F. SUPP. 297 (D.D.C. 1976), AFF'D, 540 F.2D 1141 (D.C.CIR. 1976), AN ACTION BROUGHT TO PREVENT INCIDENTAL KILLING OF PORPOISE BY TUNA FISHERMEN, THE COURT SAID THAT THE PRIMARY PURPOSE OF THE MMPA WAS TO ENSURE THE WELL-BEING OF MARINE MAMMALS. THE PROTECTION OF THE MAMMALS WAS NOT TO BE BALANCED AGAINST OTHER INTERESTS (SPECIFICALLY OF THE TUNA INDUSTRY); OTHER INTERESTS MUST BE SERVED ONLY AFTER PROTECTION OF THE MAMMALS WAS ASSURED. ID. AT 309. SIMILARLY, ONE CAN REASON FROM THIS CASE THAT THE INTEREST OF FISH PROTECTION MUST BE SERVED ONLY AFTER PROTECTION OF THE MAMMALS IS ASSURED. THIS CASE INDIRECTLY INVOLVED CONFLICT BETWEEN THE MMPA AND THE FISHERY CONSERVATION AND MANAGEMENT ACT IN THAT THE FISHERMEN HAD TO BE ACTING IN ACCORDANCE WITH AN APPROVED FISHERY MANAGEMENT PLAN UNDER THE FISHERY CONSERVATION AND MANAGEMENT ACT. THE REGIONAL MANAGEMENT COUNCIL RESPONSIBLE FOR PREPARING THE FISHERY MANAGEMENT PLAN AND THE NATIONAL MARINE FISHERIES SERVICE THUS CONSIDERED THE INCIDENTAL KILL OF PORPOISE IN CERTAIN AMOUNTS TO BE CONSISTENT WITH THE CONCEPT OF OPTIMUM YIELD UNDER THE FISHERY CONSERVATION AND MANAGEMENT ACT. THE COURT, HOWEVER, DID NOT CONSIDER THE INCIDENTAL KILL TO BE CONSISTENT WITH THE CONCEPT OF OPTIMUM SUSTAINABLE POPULATION UNDER THE MMPA.

THE OVERRIDING PURPOSE OF THE FISHERY CONSERVATION AND MANAGEMENT ACT IS TO CONSERVE AND MANAGE FISHERY RESOURCES THROUGH FISHERY MANAGEMENT PLANS THAT WILL ACHIEVE AND MAINTAIN THE OPTIMUM YIELD FROM EACH FISHERY. U.S.C. 1801(B). SEE, ALSO, H.R. REP. NO. 94-445, PP. 46-7 (1975). "OPTIMUM" IS DEFINED AS FOLLOWS:

"THE TERM 'OPTIMUM', WITH RESPECT TO THE YIELD FROM A FISHERY, MEANS THE AMOUNT OF FISH -

"(A) WHICH WILL PROVIDE THE GREATEST OVERALL BENEFIT TO THE NATION, WITH PARTICULAR REFERENCE TO FOOD PRODUCTION AND RECREATIONAL OPPORTUNITIES; AND

"(B) WHICH IS PRESCRIBED AS SUCH ON THE BASIS OF THE MAXIMUM SUSTAINABLE YIELD FROM SUCH FISHERY, AS MODIFIED BY ANY RELEVANT ECONOMIC, SOCIAL OR ECOLOGICAL FACTOR." 16 U.S.C. 1802(18).

BEFORE THE FISHERY CONSERVATION AND MANAGEMENT ACT WAS PASSED, MOST FISHERY MANAGEMENT SOUGHT TO ACHIEVE THE "MAXIMUM SUSTAINABLE YIELD" FROM A FISHERY. "MAXIMUM SUSTAINABLE YIELD" (PRIMARILY A BIOLOGICAL TERM) IS ACHIEVED WHEN THE ANNUAL CATCH FROM A FISHERY IS AT THE HIGHEST LEVEL WHICH CAN BE SUSTAINED WITHOUT HARMING THE REPRODUCTIVE ABILITY OF THE STOCK AND WHICH ASSURES A SIMILAR LEVEL OF HARVEST IN THE NEXT YEAR. SEE S. REP. NO. 94-416, P. 21 (1975) AND H.R. REP. NO. 94-445, P. 47 (1975). IN THE FISHERY CONSERVATION MANAGEMENT ACT, CONGRESS CHOSE NOT TO USE THE CONCEPT OF MAXIMUM SUSTAINABLE YIELD, BUT INSTEAD TO USE THE CONCEPT OF OPTIMUM YIELD TO GUIDE FISHERIES MANAGEMENT. OPTIMUM YIELD IS MAXIMUM SUSTAINABLE YIELD AS MODIFIED BY CERTAIN FACTORS SUCH AS ECONOMICS AND ECOLOGY. IT WAS FELT THAT THE CONCEPT OF OPTIMUM YIELD WOULD TAKE INTO ACCOUNT SUCH THINGS AS THE INTERRELATIONSHIP OF DIFFERENT SPECIES OF FISH (I.E., THE EFFECT THAT FISHING FOR A PARTICULAR FISH HAS UPON OTHER SPECIES OF FISH), THE ECONOMIC WELL-BEING OF COMMERCIAL FISHERMEN, THE INTERESTS OF RECREATIONAL FISHERMEN, AND THE WELFARE OF THE NATION AND ITS CONSUMERS. SEE HOUSE REPORT AT PAGES 46-48. OPTIMUM YIELD WOULD GIVE THE SECRETARY OF COMMERCE AND THE REGIONAL COUNCILS MORE FLEXIBILITY IN MANAGING FISHERIES. SEE SENATE REPORT AT P. 21. WE FOUND NO SPECIFIC REFERENCE IN THE LEGISLATIVE HISTORY TO THE IDEA THAT THE DETERMINATION OF THE OPTIMUM YIELD OF A FISHERY SHOULD INCLUDE CONSIDERATION OF THE OPTIMUM SUSTAINABLE POPULATION OF AFFECTED MARINE MAMMALS. ALTHOUGH SUCH CONSIDERATION WOULD BE PERMISSIBLE AND DESIRABLE, AND MIGHT BE IMPLIED FROM GENERAL REFERENCES IN THE FISHERY CONSERVATION AND MANAGEMENT ACT SUCH AS "OTHER APPLICABLE LAWS," WE DON'T THINK IT CAN BE CONCLUDED THAT CONGRESS, IN USING THE CONCEPT OF OPTIMUM YIELD IN THE FCMA, INTENDED THAT MARINE MAMMAL POPULATIONS HAD TO BE CONSIDERED. WHILE THERE MIGHT BE ARGUMENTS SUPPORTING SUCH A CONCLUSION (SEE GREEN STUDY), IT SIMPLY IS NOT CLEAR. AS A RESULT, ALTHOUGH SOME FISHERY PLANS MENTION MARINE MAMMALS, WE FOUND NONE THAT CONSIDER THE OPTIMUM SUSTAINABLE POPULATIONS OF MARINE MAMMALS IN DETERMINING THE OPTIMUM YIELD IN THE FISHERY. (SEE PAGES 42-43 OF GREEN STUDY.)

IN SUMMARY, IT IS REASONABLE TO CONCLUDE THAT MARINE MAMMAL MANAGEMENT MEASURES UNDER THE MMPA MAY, IN SOME INSTANCES, BE TO THE DETRIMENT OF FISH POPULATIONS. IT IS ALSO REASONABLE TO CONCLUDE THAT THE LAW IS NOT CLEAR ENOUGH TO SUPPORT THE POSITION THAT UNDER THE FISHERY CONSERVATION AND MANAGEMENT ACT, FISHERY MANAGEMENT MEASURES DESIGNED TO OBTAIN OR MAINTAIN OPTIMUM YIELD MUST ALWAYS CONSIDER THE OPTIMUM SUSTAINABLE POPULATION OF MARINE MAMMALS. THE APPARENT RESULT IS AN INEVITABLE CONFLICT BETWEEN THE TWO ACTS.

OVERLAP BETWEEN MMPA AND TITLE III OF MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT

UNDER TITLE III OF THE MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT, AS DISCUSSED ABOVE, MARINE SANCTUARIES MAY BE DECLARED FOR DIFFERENT PURPOSES, AND ACTIVITIES MAY BE REGULATED WITHIN THOSE SANCTUARIES IN A MANNER CONSISTENT WITH THOSE PURPOSES. AN EXAMPLE OF A SANCTUARY FOR MARINE MAMMALS IS THE SANCTUARY IN THE SOUTH PACIFIC BEING CONSIDERED FOR THE HUMPBACK WHALE. THIS SANCTUARY HAS BEEN ANOTHER SOURCE OF CONCERN IN THE STATE OF HAWAII. STATE OFFICIALS SEE NO NEED FOR SUCH A SANCTUARY, AND FEAR THAT IT MAY RESULT IN UNDUE RESTRICTIONS ON ACTIVITIES WITHIN THE DESIGNATED AREA. ACCORDING TO THESE OFFICIALS, MANAGEMENT OF THE HUMPBACK WHALE IS GOING WELL UNDER THE PRESENT SCHEME OF THINGS.

ALTHOUGH MARINE SANCTUARIES MAY SERVE OTHER USEFUL PURPOSES, WE DO NOT THINK THEY ADD ANYTHING NEW OR UNIQUE TO THE CONSERVATION OR PROTECTION OF MARINE MAMMALS. THE RANGE OF ACTIVITIES THAT MAY BE REGULATED WITHIN A SANCTUARY FORMED TO PROTECT A SPECIES OF MARINE MAMMAL IS NOT SIGNIFICANTLY BROADER, IF AT ALL BROADER, THAN THE ACTIVITIES THAT MAY BE REGULATED UNDER THE MMPA. UNDER THE MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT ANY ACTIVITY ADVERSELY AFFECTING THE SPECIES COULD BE REGULATED. SEE 16 U.S.C. 1432(F) AND DISCUSSION ON PAGE 4 HEREIN. LIKEWISE, UNDER THE MMPA WE THINK ANY ACTIVITY ADVERSELY AFFECTING THE OPTIMUM SUSTAINABLE POPULATION OF A SPECIES OF MARINE MAMMAL COULD BE REGULATED. THE MMPA PROHIBITS "TAKING" OF MARINE MAMMALS, BUT DEFINES TAKING BROADLY ENOUGH TO INCLUDE VIRTUALLY ANY ACTIVITY AFFECTING OPTIMUM SUSTAINABLE POPULATION. SEE 16 U.S.C. 1362(13) WHICH DEFINES TAKING TO INCLUDE HARASSING, HUNTING, CAPTURING, OR KILLING, OR ATTEMPTING ANY OF THE AFOREMENTIONED. THE LEGISLATIVE HISTORY INDICATES THAT CONGRESS INTENDED TO PROTECT MARINE MAMMALS FROM A BROAD RANGE OF ACTIVITIES, INCLUDING THE OPERATION OF HIGH SPEED BOATS. SEE PAGE 15 OF HOUSE REPORT CITED ABOVE. WE CAN THINK OF NO ACTIVITY ADVERSELY AFFECTING THE OPTIMUM SUSTAINABLE POPULATION OF MARINE MAMMALS THAT COULD NOT BE REGULATED UNDER THE MMPA, BUT COULD BE REGULATED UNDER THE MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT.

RETURN OF MANAGEMENT - A PROBLEM UNIQUE TO THE MMPA

ONE PROBLEM OF MARINE MAMMAL MANAGEMENT WHICH IS NOT THE RESULT OF INTERACTION BETWEEN THE MMPA AND OTHER LAWS IS THAT OF RETURNING MANAGEMENT TO THE STATES AS PROVIDED IN THE MMPA. SO FAR, MAMMAL MANAGEMENT HAS NOT BEEN RETURNED TO ANY STATE BECAUSE STATES HAVE BEEN EITHER UNWILLING OR UNABLE TO RESUME MARINE MAMMAL MANAGEMENT.

AN EXAMPLE OF A PROBLEM ENCOUNTERED WHERE A STATE WAS WILLING TO RESUME MANAGEMENT WAS MANAGEMENT OF THE WALRUS IN ALASKA. IN A RECENT LAW SUIT, PEOPLE OF TOGIAK, ET AL. V. UNITED STATES, CIV. NO. 77-0264 (1980), A GROUP OF ALASKAN NATIVES (THE PEOPLE OF TOGIAK) LIVING ON THE SHORES OF BRISTOL BAY CHALLENGED THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO DELEGATE TO THE STATE OF ALASKA CERTAIN REGULATORY AUTHORITY OVER THE TAKING OF WALRUS. THE COURT HELD THAT THE PROVISION OF THE MMPA THAT ALLOWS ALASKAN NATIVES TO HUNT NON-DEPLETED WALRUS IN A NON-WASTEFUL MANNER FOR A PURPOSE (SUCH AS SUBSISTENCE) SPECIFIED IN THE STATUTE, PREEMPTED ANY INCONSISTENT STATE LEGISLATION OR REGULATION. AND THE COURT ENJOINED THE SECRETARY OF THE INTERIOR "FROM DELEGATING AUTHORITY TO MANAGE OR REGULATE THE TAKING OF PACIFIC WALRUS TO THE STATE OF ALASKA AS LONG AS THERE IS IN EFFECT ANY STATE LAW OR OFFICIAL REGULATION OF THE STATE OF ALASKA RELATING TO THE TAKING OR PROTECTION OF WALRUS WHICH HAS THE SUBSTANTIAL PURPOSE AND EFFECT OF LIMITING THE RIGHTS OF NATIVE ALASKANS TO TAKE WALRUS FOR SUBSISTENCE AND OTHER PURPOSES CONSISTENT WITH THE MARINE MAMMAL PROTECTION ACT, 16 U.S.C. 1361, 1371(B)."

(REGARDING THE SUBJECT OF NATIVE RIGHTS TO TAKE MARINE MAMMALS, IT SHOULD BE NOTED THAT THESE RIGHTS MAY BE LIMITED BY EXECUTIVE REGULATIONS PROMULGATED PURSUANT TO INTERNATIONAL AGREEMENT. SEE, E.G., HOPSON V. KREPS, CIV. NO. A-78-184 (1979)).

CONCLUSIONS

1. INTERACTION BETWEEN MMPA AND OTHER LAWS

THE ENDANGERED SPECIES ACT, THE FISHERY CONSERVATION AND MANAGEMENT ACT, AND TITLE III OF THE MARINE PROTECTION, RESEARCH AND SANCTUARIES ACT OVERLAP AND/OR POTENTIALLY CONFLICT WITH THE MMPA. THE ENDANGERED SPECIES ACT OVERLAPS WITH MMPA, ADDS LITTLE, IF ANYTHING, TO THE PROTECTION OF MARINE MAMMALS, AND IN SOME CASES MAY HINDER MARINE MAMMAL MANAGEMENT UNDER THE MMPA. THE FISHERY CONSERVATION AND MANAGEMENT ACT POTENTIALLY CONFLICTS WITH THE MMPA IN THAT THERE ARE SITUATIONS WHERE ITS OBJECTIVES - ADVANCING THE BEST INTERESTS OF FISHERIES AND THE FISHING INDUSTRY - AND THE OBJECTIVE OF THE MMPA OF CONSERVING AND PROTECTING MARINE MAMMALS CANNOT BOTH BE SATISFIED. TITLE III OF THE MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT OVERLAPS THE MMPA IN THAT SANCTUARIES MAY BE DESIGNATED TO CONSERVE AND PROTECT MARINE MAMMALS, AND IT TOO ADDS LITTLE, IF ANY, NEW MARINE MAMMAL PROTECTION OR CONSERVATION MEASURES. MARINE MAMMAL MANAGEMENT COULD BE CARRIED OUT MORE EFFECTIVELY UNDER THE MMPA WITHOUT THE INTERFERENCE THAT RESULTS FROM APPLICATION OF OTHER LAWS. PROBLEMS UNDER THE MMPA TWO SIGNIFICANT PROBLEMS WE SEE UNDER THE MMPA ARE SPLIT JURISDICTION AND RETURN OF MANAGEMENT TO THE STATES. ALTHOUGH THE DEPARTMENTS OF COMMERCE AND OF THE INTERIOR ARE COORDINATING WITH EACH OTHER ON MARINE MAMMAL MANAGEMENT, SPLIT JURISDICTION MAKES FOR INEFFICIENCY. THE TIME AND EFFORT OF COORDINATION IN AND OF ITSELF MAKES MANAGEMENT LESS EFFICIENT THAN IT COULD BE UNDER ONE AGENCY. THE PROBLEM OF RETURN OF MARINE MAMMAL MANAGEMENT TO THE STATES MAY BE PARTIALLY CAUSED BY THE LACK OF GUIDANCE IN THE MMPA. THE PROBLEM THAT AROSE IN ALASKA REGARDING RETURN OF MANAGEMENT TO THE STATE WHILE ITS LAWS AND REGULATIONS ADVERSELY AFFECT SUBSISTENCE HUNTING MIGHT HAVE BEEN ALLEVIATED IF THE MMPA PROVIDED MORE GUIDANCE ON RETURNING MANAGEMENT TO THE STATES.

POTENTIAL RECOMMENDATIONS IN AUDIT REPORT

THE FOLLOWING POTENTIAL RECOMMENDATIONS TO THE CONGRESS ARE INTENDED FOR YOUR CONSIDERATION; WHETHER YOU ADOPT ANY OF THEM MUST DEPEND UPON YOUR AUDIT FINDINGS:

- AMEND THE ENDANGERED SPECIES ACT TO EXCLUDE MARINE MAMMALS FROM ITS COVERAGE, MAKING CLEAR THAT THE CHANGE DOES NOT IN ANY WAY DIMINISH PROTECTION OF MARINE MAMMALS;

- CONSIDER AMENDING THE FISHERY CONSERVATION AND MANAGEMENT ACT OR THE MMPA, OR BOTH, SO THAT IT IS CLEAR THAT EACH MUST CONSIDER THE INTERESTS BEING ADVANCED BY THE OTHER OR COMBINE BOTH SO THAT THE MARINE ECOSYSTEM IS MANAGED AS A WHOLE IN A MORE UNIFIED WAY;

- CONSIDER CONSOLIDATING MARINE MAMMAL MANAGEMENT WITHIN ONE AGENCY; AND

- CONSIDER AMENDING THE MMPA TO PROVIDE MORE GUIDANCE CONCERNING THE RETURN OF MANAGEMENT TO THE STATES.