6 ELR 50096 | Environmental Law Reporter | copyright © 1976 | All rights reserved

Wildlife Population Management Under the Marine Mammal Protection Act of 1972

Much of the research for this article was done for the United States Marine Mammal Commission under contract MM5AC-029. However, the views expressed herein are those of the authors and do not necessarily reflect those of the Marine Mammal Commission.

[6 ELR 50096]

Introduction

In the first years of the 1970's, at the height of the national blossoming of environmental awareness, a common concern for the condition of marine mammals crystallized in the public mind. Commercial whalers had decimated the populations of the great whales, and the blue whale, it was then thought, was perhaps already fated to subside gradually into extinction. Sport hunting jeopardized the polar bear, boaters harassed the rare manatee, and the sea otter was recovering but still vulnerable. The United States government killed seals by the thousands in commercial harvests of disputed scientific justification and alleged brutality. To wildlife conservationists, it seemed that the viability of marine mammals was seriously threatened by human activities. Yet some of these same marine mammals were widely judged to be intelligent, highly organized, and socially responsive species, and therefore especially worthy of human care and protection. The public concern over the plight of marine mammals and a complementary public interest in their unique characteristics generated a broadly based movement to grant them special legislative protection going far beyond existing wildlife management and endangered species protection laws.

The product of that movement was the ambitious Marine Mammal Protection Act of 1972 (MMPA),¹ which aspires to "protect, conserve, and preserve the marine mammals of the world."² It envisions a sophisticated pattern of scientific management of these mammals for the ultimate purpose of maintaining the health and stability of the marine ecosystem. To this end, the Act prescribes a number of specific objectives:³

to restore, and then maintain, what the Act calls "optimum sustainable populations" of marine mammals;

to promote international agreement on policies similar to those of the Act;

to accumulate scientific data and analysis about marine mammals;

to assure public participation in the administration of management programs; and

to treat marine mammals in a humane fashion.

A corpus of administrative practice and judicial comment is gradually developing around the MMPA that provides a basis for interpreting the Act and evaluating itsimplementation. The federal regulations governing the taking of porposie during tuna fishing operations led recently to the first court opinion interpreting substantive provisions of the MMPA.⁴ The government has made several decisions on the perennial requests of the Fouke Company, a fur seal processor, to import sealskins from South Africa. The states of Alaska and California have pending before the federal government requests to return to the states their authority to manage marine mammals, which was preempted by the MMPA.

Despite the diversity of contexts, the government's decision in each of these cases has revolved around the central questions of the objectives of management under the MMPA and the population level of a species that permits waiver of the Act's moratorium on taking. The heart of this article is an analysis of the Act's novel management policies, with particular attention to the term "optimum sustainable population," a standards unique in wildlife law.

Preceding the analysis of policy is a description of the administrative structure and process for decisionmaking prescribed by the Act, identifying the agencies involved in administering the Act and the standards that they must meet in justifying their policies for implementing it. The description also sets the scene for the critical evaluation in the third part of the article of the decisions made so far — the Fouke applications and the two state requests for return of management authority. In the end, it is administrators, not legislators, who impart meaning to a statute. The analysis will assess how closely administrative marine mammal policy comports with the apparent intent of Congress in enacting the MMPA.

The great eruption of ground-breaking environmenttal legislation of the early 1970's has subsided. The primary [6 ELR 50097] arena of conflict and innovation has now shifted to the agencies responsible for implementing the dramatic policies announced by Congress a few years ago. The Marine Mammal Protection Act provides a good study of just how far Congress did go in those years, and how the executive agencies have adjusted to their new mandates.

Administrative Responsibilities and Procedures

1. The Allocation of Administrative Responsibility

All marine mammals share the unusual characteristic of being warm-blooded air-breathing species that can survive for long periods in the water, but otherwise they are a biologically diverse group falling into four taxonomic orders — cetacea (whales and porpoises); pinnipedia (seals, walrus, etc.); sirenia (manatees and dugongs); and carnivora (polar bears and sea otters). The taxonomic grouping corresponds to different characteristics among marine mammals. The cetacea are born in the water and spend most of their lives in areas of open ocean waters. The pinnipedia mate and give birth on land or ice, but are also, for the most part, open ocean animals. The sirenia, like the cetacea, never leave the water, but they confine themselves to shallow coastal bays and estuaries. The carnivora are the most dependent on habitat out of water — rocks or floating ice — and are the least adapted to the aquatic way of life.

This diversity among marine mammals, along with differences in traditional patterns of their exploitation, led to a division of bureaucratic responsibility for them. The pelagic (deep ocean) species — the cetacea and all pinnipedia except the walrus — were put under the aegis of the Department of the Interior's old Bureau of Commerical Fisheries, while the others — the species with more affinity for land — were managed by Interior's Bureau of Sport Fisheries and Wildlife.

In 1970, President Nixon ordered a reorganization of the executive agencies to create the National Oceanic and Atmospheric Administration (NOAA) within the Department of Commerce.⁵ Among the duties transferred to NOAA were all the programs of the Bureau of Commercial Fisheries, now called the National Marine Fisheries Service (NMFS).

Since there was no national marine mammal policy in 1970, this division of responsibility between two departments was not of great consequence at first. Furthermore, another reorganization was being prepared to establish a new Department of Natural Resources, where administration of commercial fisheries and other fish and wildlife would be reunited. At about that time, however, Congress began considering marine mammal legislation, and most of the bills reflected the new executive structure in their designation of the responsible agency.

The more protection-minded supporters of marine mammal legislation argued strenuously against leaving any management authority in the Department of Commerce. They thought that the traditional mandate of the Department of the Interior was more in keeping with the protective tone of the legislation. When they lost their argument in the committees, they took the issue to the floor of both houses. They lost there, too, but not without receiving a commitment from NOAA's supporters that, if the Department of Natural Resources were nto established, the split in jurisdiction over marine mammals would be re-examined.

Thus it happens that the NMFS has responsibility for the larger number of marine mammal species, and the Fish and Wildlife Service (FWS) of Interior has responsibility for the rest. This bifurcated administration is likely to endure, for the NMFS has not been so biased against protection as its critics had feared, nor has the FWS been so supportive as its supporters had wished.

Each agency has created internal administrative structures to accommodate the larger responsibility for marine mammals delegated by the MMPA. The NMFS has an entire subdivision, the marine mammal branch of the Office of Resource Management, for its marine mammal programs. The FWS, with the lesser number of species, has not created a separate division, but it does have a Marine Mammal Coordinator, directly responsible to the director of FWS, who shapes the Service's program and gives it bureaucratic visibility.

Because of the dearth of expertise on marine mammals in the executive agencies, where marine mammals are just a small part of the agencies' programs, Congress created⁶ an independent body, the Marine Mammal Commission, composed of three knowledgeable experts on marine mammals who serve three-year non-renewable terms. The Commission is to function as a formulator of long-range policy and as a consultant in an oversight capacity to the agencies implementing the MMPA. Assisting the Commission is a larger body of experts called the Committee of Scientific Advisors on Marine Mammals.

2. Administrative Procedures for Managing Marine Mammals

The Act establishes a three-tiered regulatory system for the population management program. The first tier is a moratorium with provision for its waiver.⁷ This aims to protect all marine mammals until positive management choices are made. The second tier is to be regulations governing all taking from a certain population or species.⁸ The third is permits, to be issued in accordance with the regulations to each person taking marine mammals.⁹ Overlaying the entire system are statutory prohibitions enforcing the regulatory system and banning certain activities.¹⁰

The foundation of the administrative system is the [6 ELR 50098] moratorium, a "complete cessation of the taking of marine mammals and a complete ban on the importation into the United States of marine mammals and marine mammal products."¹¹ Congress imposed the moratorium in recognition of the depleted condition of many marine mammal stocks and the scarcity of data presently available upon which to erect scientific management programs.¹² The moratorium creates a presumption that marine mammals should be fully protected; each waiver of the moratorium must be based on assurances that the taking or importation it allows will be consistent with the Act.¹³

The moratorium does not apply to the taking of marine mammals by Alaskan Indians, Aleuts or Eskimos for purposes of subsistence or pursuit of traditional native handicrafts, although the native taking of stocks administratively determined to be "depleted" may be regulated.¹⁴

As the word moratorium implies, however, the ban on taking marine mammals is far from absolute. Congress granted exceptions to the moratorium for three types of activities, each exception related to a policy being promoted in combination with the Act. More importantly, Congress also provided for administrative waivers of the moratorium to allow taking consistent with the population management policies of the Act.

The first of these exceptions permits taking or importation for scientific research or public display purposes,¹⁵ when the proposed taking is determined by the appropriate secretary to be consistent with the Act, after review by the Marine Mammal Commission. The exception for scientific taking promotes the research component of the Act's policy, which Congress hopes will improve our understanding of marine mammals and thereby lead to more appropriate management policies.¹⁶ The provision for public display permits tacitly acknowledges the value of citizen awareness and appreciation of marine mammals in fostering public attitudes consonant with the Act's policy.¹⁷

The second exception provides for taking marine mammals incidentally in the course of commercial fishing operations.¹⁸ Tailored to the so-called tuna-porpoise problem — the entrapment of porpoise in the purseseine nets of tuna fishermen in the tropical Pacific¹⁹ — it applies also to the killing of seals by fishermen in defense of their equipment and catches, and to any other situation in which marine mammals directly interfere with fishing operations.²⁰ For the first two years, incidental take was exempt from most of the regulatory controls of the MMPA. Since 1974, the permit and regulatory system governing incidental taking has been similar to that which governs other taking of marine mammals; the differnece is that the prerequisite waiver of the moratorium is legislatively granted.²¹

The third exception to the moratorium arises out of the provision in § 113(a) that the Act "shall be deemed to be in addition to and not in contravention of the provisions of any existing international treaty, convention or agreement … which may otherwise apply to the taking of marine mammals." As a practical matter, this exception applies to only one convention, the Interim Convention on the Conservation of North Pacific Fur Seals.²² This convention requires taking seals on the Pribilof Islands every year; if consistent with the maximum sustainable yield criterion of the convention, § 113 provides the necessary stipulation that the performance of the government-supervised Pribilof harvest will not be affected by the moratorium.

[6 ELR 50099]

Distinct from these legislative exceptions to the moratorium for narrowly defined purposes is a general authorization and direction in § 101(a)(3)(A) for the administrators of the Act to waive the moratoium to allow the taking of marine mammals when consistent with the Act. The waiver authority is designed to facilitate affirmative management of marine mammal populations so as to maintain all marine mammals at their optimum sustainable populations, once they have replenished to that level. The end use of any animals taken under a waiver is irrelevant.

Proper exercise of this authority to waive the moratorium necessitates the regulatory regime established by the Act. Three distinct administrative steps must be completed before a marine mammal may be taken: (1) the moratorium must be formally waived for the species and population; (2) regulations governing the taking of the species or population must be promulgated; (3) and permits pursuant to the regulations must be issued to the party engaging in the taking (or importation) of the marine mammal or marine mammal product.

The conditions under which the administrators may waive the moratorium are specified in the Act:

The Secretary, on the basis of the best scientific evidence available and in consultation with the Marine Mammal Commission, is authorized and directed, from time to time, having due regard to the distribution, abundance, breeding habits, and times and lines of migratory movements of such marine mammals, to determine when, to what extent, if at all, and by what means, it is compatible with this Act to waive the requirements of this section so as to allow taking, or importing of anymarine mammal, or any marine mammal product, and to adopt suitable regulations, issue permits, and make determinations in accordance with sections 102, 103, 104, and 111 of this title permitting and governing such taking and importing, in accordance with such determinations: Provided, however, That the Secretary, in making such determinations, must be assured that the taking of such marine mammal is in accord with sound principles of resource protection and conservation as provided in the purposes and policies of this Act….²³

The general condition that the waiver be compatible with the Act and the specific proviso that it accord with "sound principles of resource protection and conservation" make it clear that a waiver is proper only when the population to be opened to taking has reached its optimum sustainable population level and will not be reduced below it by the taking. The proponent of a waiver bears the burden of establishing its propriety in these respects.²⁴

Under current administrative practice, it is not necessary to determine with precision what the optimum sustainable population level is in order to meet this burden.²⁵ If the population is sizable, has been growing, and is in a healthy condition, as with the walrus, it may, with sufficient certainty, be considered on those grounds alone to be within the range of optimum sustainable population.²⁶ If the population is sizable, suffers high mortality from disease or other natural causes, and shows no measurable growth trend, this might indicate a population at carrying capacity, and therefore within the range of optimum sustainable population, for which a waiver would be acceptable, perhaps advisable, to prevent overburdening the habitat.

Judge Richey's opinion in the tuna-porpoise case²⁷ casts some doubt on the propriety of estimating optimum sustainable population in this way, but the holding of the case was based upon an explicit admission by NMFS that the optimum sustainable population for the several species of porpoise was unknown. There is a considerable distinction between uncertainty and ignorance. Where substantial bodies of data on a species have been accumulated and the current status of its population is readily observable (as with the walrus), an estimate of optimum sustainable population can be justified. Indeed, since there is no fixed definition of optimum sustainable population, it will always be determined by a scientific judgment based on indicators of population size and health such as the birth rate, morbidity rate, or shifts in ecological balances in the habitat. However, if the administrators have little or no scientific information about a species, then they have no firm basis for any conclusion about the optimum sustainable population for that species. The key requirement is that optimum sustainable population be determined by scientific evidence, not guesswork.

Whenever the evidence is doubtful, the notion of the burden of proof requires that the waiver request be denied. One purpose of the moratorium is to prevent ill-considered taking before the scientific evidence on the species provides assurance that the taking will not deplete the population.²⁸

Once the moratorium has been waived, the administrators must issue general regulations. Sectionn 103 of the Act, providing for the regulations, begins with a reiteration of the requirements that the taking be based on scientific evidence and be consistent with the policies of the Act and supplements this with the requirement that the regulations shall be such as the Secretary "deems necessary and appropriate to insure that such taking will not be to the disadvantage of those species and population stocks…," that is, that it will not deplete the population below its optimum sustainable population level.²⁹ In short, the factors that go into determining the optimum sustainable population must be borne in mind when devising the regulations.

[6 ELR 50100]

Subsection (b) of § 103 emphasizes five discrete factors: population levels, future as well as present; ecosystem effects; existing international obligations; conservation, development, and utilization of fishery resources; and the economic and technological feasibility of implementation. Since many marine mammals prey on commercial fish stocks, consideration of fishery resources may suggest allowing a somewhat higher take than the rest of the Act would deem appropriate,³⁰ but the legislative history supports the contrary view.³¹ The consideration of feasibility relates to the enforceability of the regulations and the ability of permit recipients to perform according to the regulations.³²

Sectionn 103(c) provides a list of the key topics to be regulated. In addition to factors directly related to population dynamics — number of animals and age, size, or sex of animals — regulations may relate to seasons, methods of take, and techniques of fishing injurious to marine mammals. This is not an exhaustive list; the scope of the regulations is discretionary with the administrators.

Before regulations are issued, there must be an opportunity for an agency hearing on the regulations and on the antecedent decision to waive the moratorium for that species. To ensure that the public will be properly informed and capable of effective participation, the Act requires the agency to publish and distribute: a statementof the estimated existing population; a statement of the expected impact of the regulations on the optimum sustainable population; a statement of the evidence upon which the regulations are based; and any studies prepared with regard to the regulations.³³

After regulations have been promulgated for a species, the administrators may issue permits for taking under the conditions prescribed in § 104 of the Act. Persons desiring to take marine mammals must receive such a permit to authorize their activity, and the permit must be consistent with the relevant regulations promulgated under § 103. Each permit must specify the number and kind of animal to be taken (or imported), the location and manner of its taking, and the period for which the permit is valid. For fishermen, who usually require more flexible authority, § 104(h) authorizes general permits for a class of fishing vessels and sets a maximum number for the class but not for an individual operator.

Congress debated requiring a hearing before the issuance of permits as well.³⁴ It finally settled on a compromise formula for a discretionary hearing at the request of "any interested party."³⁵ In all cases, the administrators must published notice of the receipt of an application for a permit, solicit public comments on the application, and publicize the final disposition of the application.³⁶ Similar rules apply to decisions to modify, revoke or suspend permits, except thatt a right to a hearing, after due notice, is afforded to the permit holder in such instances for his protection from administrative abuse.³⁷ Decisions on applications for a permit or on modifications, revocations, or suspensions of permits are subject to judicial review at the behest of any party.³⁸

Two subordinate features of the permit system are of special interest. First, the Secretary may not grant a permit solely on the ground that the taking is necessary to reduce overpopulation. If the applicant offers that justification for the taking, the Secretary must first consider the alternative of transplanting surplus animals to restock former habitats of the mammal involved.³⁹ Second, there is an explicit requirement that the permit applicant "must demonstrate to the Secretary that the taking or importation of any marine mammal under such permit will be consistent with the purposes of this Act and the applicable regulations established under section 103 of this title."⁴⁰ What is implicit in other sections of the Act — that the burden of proving the propriety of the taking is on those proposing to take marine mammals — is at this point made a legal condition for receiving permission to take.

The system of waiver, regulations, and permits is enforceable in a number of ways. Failure of the administrators to perform each of the regulatory duties under §§ 101, 103, and104 is reviewable in the courts. Sectionn 104(d)(6) expressly affords judicial review to any party concerning a decision to grant or deny a permit under § 104. Noncompliance with § 103 regulations or the terms of a permit received under § 104 by a person taking marine mammals or engaged in a fishery subject to regulation for the control of incidental taking is declared unlawful by §§ 102(a)(1) and (4). Other paragraphs of § 102 make unlawful the possession of a marine mammal taken unlawfully, the importation of marine mammals taken in violation of the laws of the country where they were taken, the importation of marine mammals that were pregnant, nursing, or less than eight months old at the time of taking (except for research), and a number of other particular activities. Sectionn 105 establishes a regime of penalties for violations of the Act, with a maximum civil penalty of $10,000 for each violation, and a criminal penalty up to $20,000 for each knowing violation.

In sum, at each step of the administrative process-waiver of the moratorium, promulgation of regulations, and issuance of permits — the administrators of the management programs must confirm that their actions will not contravene the policies of the Act. This multiple review guarantees, to the extent possible, that marine mammals will in fact be managed to achieve and maintain the optimum sustainable population for each species and population.

[6 ELR 50101]

The Population Management Policy

The population policy of the MMPA is its most substantial and innovative component.⁴¹ As a consequence of its central role, and of the controversy that surrounded its formulation in Congress, the population policy is at once the most intricate and the most poorly articulated component of the Act: poorly articulated in its purpose, intricate in its implementation.

The Act delares the purpose in the following language:

[I]t is the sense of Congress that [marine mammals] 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. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the optimum carrying capacity of the habitat.⁴²

To understand how to translate this purpose into an administrative policy, it is necessary to know how the several concepts it incorporates were understood by Congress. These concepts — especially the term "optimum sustainable population" — were the crucial result of the debate over conflicting viewpoints represented in a multitude of bills from which the Act was shaped.

Two competing clusters of interest strongly influenced the character of the final legislation. One, a combination of humane groups and idealistic environmentalists, came to be known as "protectionists" because they advocated granting marine mammals complete protection from all killing, either permanently or for a specified period of years. The other, consisting primarily of scientists and public wildlife administrators, were termed "managers." They favored a law that would protect seriously depleted species, but would allow the killing of animals from larger populations on a systematic basis, such as maximum sustained yield.

A critical evaluation of the statute and its legislative history suggests that Congress strove to incorporate the best of both philosophies in the MMPA. On the one hand, it espoused the essence of the managerial position: constant surveillance of the status of animal populations and formulation of a program of protection or controlled killing based on scientific evidence for each species. On the other hand, the Act established a management program goal not much different from that desired by the protectionists: the maintenance, where feasible, of animal populations at or near their natural levels.

The synthesis of the manageral and protectionist philosophies is visible in the statutory definition of the term "optimum sustainable population" (OSP), the population level that is the goal of marine mammal management:

The term "optimum sustainable population" means, with respect to any population stock, 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 constituent element.⁴³

The use of "population" rather than the conventional management term "yield" as the basic criterion reflects the protectionist focus on the maintenance of live animals in their natural state. Yet the implicit assumption that a certain population level for each species is optimal, and that the populations should be actively managed for that level, adopts the managerial view thatt positive control is preferable to abstention from human interference and is often necessary to protect the integrity of the ecosystem.

As a dynamic synthesis of the opposing philosophies of management and protection, OSP appears to mean a population that is at a level of maximum ecological productivity, that is at the limit of the environment to sustain healthy populations indefinitely, and that does not adversely affect the ecosystem of which it is a part. A population defined in this way will normally be the largest sustainable population of the species in a given region.

This definition of optimum sustainable population flows from two separate interpretive approaches to the Act. The first is to analyze the statute as a whole in order to appreciate its general purpose and tenor and to see how its parts are integrated. The second is to turn to the sources of the Act, the bills in each house of Congress, and the course of debate and amendment in the committees and on the floor, in order to glean the congressional intent behind the language of the Act.

1. The Statutory Context

The Act explicitly declares that marine mammal populations should not be allowed to fall below their OSP level.⁴⁴ By the use of the adjective "optimum" and by stating OSP as an objective of management, the Act also implicitly declares that marine mammal populations should not go above their OSP levels.⁴⁵ The restoration of populations to and their maintenance at OSP levels are the respective goals of protection and management.⁴⁶

The policy declaration quoted at the beginning of this discussion⁴⁷ sets the tone for interpreting the Act's provisions. [6 ELR 50102] In it, Congress calls for encouraging the development of marine mammals "to the greatest extent feasible." This language directly supports the interpretation of OSP as the maximum sustainable healthy population. The constraint that the development of populations be "commensurate with sound policies of resource management" merely introduces the idea, reiterated throughout the Act, that the management of marine mammals should consider the ecological context, and that the health of the ecosystem is always to be paramount to the welfare of individual species.⁴⁸ For instance, if a herd of seals near its natural population level were preying on fish to the extent that certain species of fish were being depleted or the food supply of another animal reduced, then the seal herd should be reduced to restore a balance to the ecosystem and prevent adverse effects on other species.⁴⁹

The Act's definition of "management" and "conservation"⁵⁰ reaffirms the policy declaration. The purpose of management or conservation, it says, is "maintaining the number of animals within species and populations of marine mammals at the optimum carrying capacity of their habitat." Maintaining a population "at" carrying capacity means maintaining it at the largest number that it and its habitat can feed, shelter, and otherwise support.⁵¹ The "optimum" carrying capacity is that capacity available over time without impinging on other elements of the ecosystem.⁵² Managing a population to maintain it at the optimum carrying capacity, therefore, is equivalent to developing it to the greatest extent possible commensurate with the health of the ecosystem.

Moreover, the Act provides that a population or a species that is not at its carrying capacity is by that fact alone eligible for designation by the administrators of the Act as a depleted species.⁵³ Depleted species are afforded special protection to insure that they will not be further reduced,⁵⁴ in keeping with the policy that marine mammal species "should not be permitted to diminish below their optimum sustainable population."⁵⁵ If a population below its optimum carrying capacity is considered depleted, and if species should not be allowed to diminish below OSP, then OSP must refer to a population level as high as the habitat can "carry" over time the interplay between the statutory definitions of OSP and optimum carrying capacity supports this reading.⁵⁶

The administrative provisions of the Act are phrased in language that makes the reading of the term OSP derived from the Act's statement of policy the most plausible of the alternatives. Administration of marine mammals begins with protection — a legislatively imposed moratorium on all taking,⁵⁷ to which a number of exceptions are granted for special purposes, for example, scientific research and taking in the course of fishing operations.⁵⁸ The Act then provides for affirmative management programs by permitting a waiver of this moratorium, for individual populations or species, when the administrators are "assured" that waiving the moratorium is consistent with "sound principles of resource protection and conservation" as indicated by the policies and purposes of the Act.⁵⁹

This language transforms the exhortation to use management practices (as management is defined) into a binding directive to administrators of the Act. Read in conjunction with the policy statements discussed above, particularly the definition of conservation,⁶⁰ this provision means that the moratorium may be waived [6 ELR 50103] only for a population at its OSP level. While the standards for waiving the moratorium to not define the meaning of OSP, they do reinforce the Act's "protectionist" approach to management by retaining the moratorium on taking of marine mammals when the "assurance" is lacking that the taking is scientifically justifiable.

The Act also stresses protective population management in the standards that it establishes for the detailed regulations that must be promulgated before permits to take marine mammals may be granted. The regulations must be such as the administrators deem "necessary and appropriate to insure that such taking will not be to the disadvantage" of the affected species or population.⁶¹ The justification for management is that taking animals from a population will in certain cases be to the advantage of the population as a whole, the most vivid example being overpopulation of a breeding ground or feeding area.⁶² The Act confines management to this purpose. When taking is expected to have a beneficial effect on the welfare of the population or the ecosystem, it is probably mandated as part of a proper management program, but when taking will merely reduce the population without bestowing any offsetting benefit on the species or the ecosystem, then it would be to the disadvantage of the population and should not be allowed.

The recent federal district court decision in Committee for Humane Legislation, Inc. v. Richardson⁶³ confirms that the administrators of the MMPA have very limited discretion to allow taking. The case involved the validity of the regulations under which NMFS issued permits to the tuna fishing industry to allow it to take an unspecified number of porpoise incidental to its fishing operations. (Because Congress directly authorized NMFS to promulgate such regulations, the waiver of moratorium provision was not at issue.) In a carefully crafted opinion, the court found the regulations invalid because they did not "insure" that the mortality levels would not be to the disadvantage of the porpoise populations. Referring to the moratorium provisions and to the Act's opening statements of policy, the court determined that any taking which thwarted the objective of maintaining populations at OSP was to the disadvantage of the species.⁶⁴ In the court's view, this interpretation of the MMPA meant that NMFS must determine what the OSP level of each species is before it can permit its members to be taken.⁶⁵

Although the court could not assess the concrete meaning of OSP in terms of a level of population, it correctly construed the MMPA to allow taking only from populations at OSP levels and at the same time to require that taking not be to the disadvantage of a population. This again amounts to defining OSP as the largest sustainable population. Taking from populations at their OSP level is permitted in order to prevent overpopulation with its consequent adverse effects. Taking from a population that has not reached the carrying capacity of its habitat and is not otherwise disrupting the ecosystem would be to the disadvantage of the species; such a population therefore must be considered to be below its OSP level, and taking from it generally must be prohibited.

The moratorium provision is an implicit congressional declaration that each marine mammal species should be considered depleted, and therefore should be protected from taking, until the administrators can scientifically establish that it is at its OSP level.⁶⁶ The several provisions defining management and carrying capacity, promoting the development of marine mammals, and prohibiting any taking that is to their disadvantage are consistent with the Act's protective management policy and are consistent with one another when OSP — the population objective of the Act — is interpreted to mean the largest population sustainable in a healthy condition that does not disrupt or disturb its ecosystem.

2. The Congressional Intent

The legislative history of the Marine Mammal Protection Act is sufficiently long and complex to support a number of different readings of the Act if read selectively, but when viewed in its entirety, it shows that the majority of Congress — at least the majority of those who took an interest in the matter — intended the Act to promote the policy of maintaining the largest populations of marine mammals consistent with the welfare of the species and other elements of the ecosystem. This policy is encapsulated in the statutory definition of the term "optimum sustainable population" (OSP)⁶⁷ even though the derivation and interpretation of OSP is the most obscure aspect of the Act's intricate legislative history.

The legislative process was complicated from the start by the large number of distinct bills introduced by Congress — six in the House,⁶⁸ seven in the Senate.⁶⁹ Several bills would have banned all killing or capture of marine mammals, foremost among which was the Harris-Pryor bill;⁷⁰ these did not contribute significantly to the final act except by serving as rallying points for the supporters of protectionist legislation.

Among the remainder, all of which espouse some form of management for marine mammals, two bills were major influences on the Act. The first, H.R. 10420, [6 ELR 50104] a bill sponsored by Congressmen Anderson, Pelly, and others, was a management-oriented counterthrust to the protective bills introduced earlier.⁷¹ It was submitted shortly before the subcommittee hearings on the bills began and quickly established itself as the key bill. Passed by the House in March 1972, after certain significant revisions in committee and on the floor, it became the core element of the Act in its final form.

The second influential bill was S. 3161, submitted on the Senate side by Senator Stevens.⁷² The novel phrasing and terminology of this bill, key points of which are incorporated in the Act, give it a significance in the legislative history out of proportion to the small amount of direct support it received. The other Senate bills of note, sponsored by Senator Hollings (S. 3112)⁷³ and Senator Williams (S. 2871),⁷⁴ were both modeled on the Anderson-Pelly bill in the House, except thatt Senator Williams's bill included a ten-year prohibition on commercial taking.

The House, under the guidance of Congressman Dingell, Chairman of the Subcommittee on Fisheries and Wildlife Conservation of the Committee on Merchant Marine and Fisheries, took the initiative on the Marine Mammal Protection Act. The Subcommittee held four days of hearings in September 1971, and the full committee reported out its bill in December. That bill failed to pass under a special end-of-the-session rule that does not allow amendments from the floor; reconsidered in March 1972, it passed overwhelmingly after several important amendments.

The Anderson-Pelly bill, in its original form, stated a policy that marine mammal populations should not fall below the level "at which they can maintain that equilibrium at which they may be managed on an optimum sustained yield basis."⁷⁵ During its hearings, the House Subcommittee on Fisheries and Wildlife Conservation questioned many of the witnesses about what an "optimum population" or an "optimum yield" is or should be.

The Subcommittee was particularly eager to learn whether a distinction could or should be made between optimum population or yield and the well-established wildlife management principle of obtaining the maximum sustained yield (MSY). The Subcommittee members were aware that protectionists, and even many wildlife managers, were critical of the management practices used to promote MSY policies. The question in their minds was what standard to substitute for MSY.

In response to the Subcommittee queries, Dr. Lee Talbot, Senior Scientist of the Council on Environmental Quality, stressed that management should have as its objective "[w]hat will be best for the herd and the environment," and suggested introducing the "health and stability of the marine ecosystem" as a management criterion.⁷⁶ Dr. Carleton Ray, a scientist testifying for a group called the Marine Mammal Council,⁷⁷ summarized for the Subcommitteee his distinction between MSY and "optimum" as management goals:

It is also clear that what is "optimum" from the point of view of economic yield may not be optimum in terms of a species population in its environment. A part of the difficulty in management practice is that it has been in terms of human needs rather than in terms of the needs of ecological balance within a natural ecosystem.⁷⁸

The Subcommittee was receptive to this type of approach. Thus, for example, during questioning of Department of Commerce officials responsible for the management of the northern fur seals on the Pribilof Islands, the members indicated skepticism about MSY as a management approach, and voiced concern for "protecting the herds."⁷⁹

Supporters of the Harris-Pryor protectionist bill challenged the very idea of management during their testimony,⁸⁰ but they were countered by the opinion of several witnesses,⁸¹ that management was essential. As a spokesman for the National Wildlife Federation put it:

The worst disservice we could perform to any form of wildlife would be to abandon the principle of sound management. Because man has so complicated and disrupted the animal habitat, there is little semblance in [sic] the balance of nature.

If populations are not kept at levels supported by adequate food supply, living and breathing space, many will die of starvation and disease, plus suffering the lack of procreation.⁸²

Assimilating this testimony, the Subcommittee and its parent House Committee on Merchant Marine and Fisheries revised the language of the Anderson-Pelly bill by including a statutory definition for "optimum sustained yield":

The term "optimum sustained yield" means the sustained yield that results in a population of an optimum number of animals, keeping in mind the health of the ecosystem of which they form a constituent element.⁸³

In the report accompanying the revised bill, the Committee explained its purposes and intentions. The Committee rejected the flat prohibition or moratorium on [6 ELR 50105] the taking of marine mammals "not because [it] was unsympathetic with its objectives," but because "[e]xperienced, independent scientists … argued persuasively that animal populations may indeed require management in order to prevent them from exceeding the carrying capacity of their environment and thus destroying it and themselves in the process."⁸⁴ Therefore, the Committee felt the answer lay, not in abandoning the concept of management, but in "making the management that does take place more responsive to the true needs of the situation."⁸⁵

The clearest indication of the Committee's view of optimum sustained yield is in its paraphrase of the statutory definition:" 'Optimum sustained yield' means a sustained yield resulting in an optimum usually close to maximum number of animals, bearing in mind the primary goal of ecosystem health and productivity."⁸⁶ The caveat "bearing in mind … ecosystem health and productivity" does not alter the objective of maintaining the largest sustainable population. As the Committee remarked in its report, management to maintain the health and stability of the marine ecosystem "indicates that the animals must be managed for their benefit and not for the benefit of commercial exploitation."⁸⁷ The Committee could not have more explicitly disavowed MSY or economic management criteria. Any economic benefit that accrues from the management of marine mammals should be incidental to the purpose of benefiting the species and the environment.

The House report returned at another point to the idea that management should benefit the animals. As noted above, the hearings had produced testimony that management was necessary in order to prevent marine mammal populations from "exceeding the carrying capacity of their environment and thus destroying it and themselves in the process."⁸⁸ Management might not be necessary in a state of nature, but the human disruption of the marine environment through pollution, fishing, coastal development, and uneven reductin of the populations of different species has rendered natural balances ineffective, allowing some species to overpopulate their habitat with disastrous results.⁸⁹ With these situations in mind, the Committee concluded that there are often cases in which the species may be "benefited by removing excess members," and the bill accordingly authorized the administrators, "in these cases," to "establish appropriate limitations which will permit the taking of these animals."⁹⁰ The idea of taking for the benefit of the species was used in floor debate to attempt to reassure the supporters of the protectionist approach that the bill's optimum sustained yield criterion was not to be a blank check to commercial interests.⁹¹

In spite of the strong language of the Committee's report, the protectionists were apprehensive about the Anderson-Pelly bill. With the help of editorials in the major newspapers, they were able to prevent passage of the unamended bill in the closing hours of the 1971 congressional session.⁹² When the bill came to the floor again in March 1972, protectionists gained a substantial victory by amending the bill to impose a five-year moratorium on taking any marine mammals, excepting only taking for research and display, commercial fishing operations, Alaskan native subsistence, and the Pribilof fur seal harvest.⁹³

Meanwhile, numerous bills had been introduced in the Senate, and the Subcommittee on Oceans and Atmosphere of the Senate Committee on Commerce, chaired by Senator Hollings, had held its own hearings. The tenor of the Senate hearings was much the same as that in the House, with the search for a meaningful substitute for MSY again evident in the questions posed by Subcommittee members.⁹⁴ The bills that went into the Subcommittee and the Committee during mark-up, however, differed at key points from the House language, and as a result the bill reported out to the Senate floor contained numerous new ideas, most of which were accepted in conference and incorporated into the final version of the Act.

Senator Stevens's bill, S. 3161, contributed most of this fresh thinking. Its outstanding feature was a series of statutory definitions for terms left undefined by the [6 ELR 50106] other bills. Among these was a definition of the term "optimum carrying capacity" and a usage of that therm in the other definitions that made it a vital concept. Stevens's definition knit together the concepts of the carrying capacity of an ecosystem and its health and stability:

The term "optimum carrying capacity" means the ability of a given habitat to support healthy species or populations without diminishing the ability of the habitat to continue that function.⁹⁵

Senator Stevens's forcefull bill made creative use of this definition. It proposed a policy that "immediate action should be taken to protect and manage … species and populations to replenish their numbers to the optimum carrying capacity of the habitat." It defined management as the application of information "for the purposes of increasing and maintaining the number of animals within species and populations of marine mammals at the optimum carrying capacity of their habitat." Finally, it defined optimum sustained yield as "that number of animals of any species or population that may be taken in a prescribed period or manner after the species or population is determined to be at the optimum carrying capacity of the habitat."⁹⁶ The Act as passed adopts, with some modification, each of these uses of the term.⁹⁷

The phrases underlined prescribed that marine mammal populations be brought to and maintained at the optimum carrying capacity of the habitat. In animal resource management, carrying capacity denotes the maximum number of a species that the habitat can tolerate; it is often equated with the population level that would occur naturally.⁹⁸ A population at optimum carrying capacity, therefore, is the maximum population that the habitat can bear (or that can sustain itself in a healthy condition and over an extended period of time. This is strikingly similar to the statement of population policy in the House Committee report.⁹⁹

Senate Commerce Committee mark-up produced an eclectic marine mammal protection bill, will sources in the amended Anderson-Pelly bill passed by the House and in Senator Sevens's bill, supplemented with new language. From the amended Anderson-Pelly bill the Committee adopted the reference to the health and stability of the ecosystem and the mandate to manage populations according to ecosystem considerations. From Stevens's bill it incorporated the definition of optimum carrying capacity and the management objective of maintaining populations at optimum carrying capacity. The new language of the Committee introduced during mark-up changed the term optimum sustained yield to optimum sustainable population (OSP) and added the criterion "maximum productivity."

The absence of any recorded discussion of OSP on the Senate floor, during conference, or before final House and Senate approval, raises a presumption that Congress did not view it as a significant departure in meaning from the House definition of optimum sustained yield.¹⁰⁰ The switch from "yield" to "population" certainly indicates no such departure. On the contrary, it reinforces the stated intention to divorce management from a preoccupation with yield — in numbers or in dollars — and refocus it on the welfare of the species — the "population" — and the healthiness of its relationship to its environment.¹⁰¹

The concept "maximum productivity" is more difficult to reconcile with the thrust of the other bills that are the foundation of the Act. There is no reference to productivity in any of those bills or in the draft proposed amendments submitted by key witnesses, nor does the Committee's report give a clue to what the term means or why it was made the foremost criterion for determining OSP. Productivity refers broadly to the ability of the population to create some product; the choice of the product by which to measure productivity will determine the meaning of maximum productivity.

Scientists working in wildlife or fisheries management are accustomed to measure the productivity of a population by its annual production of new animals, commonly (in order to account for infant mortality) by counting the number of animals that join the sexually mature population in a year.¹⁰² In the context of a resource management statute like the Marine Mammal Protection Act, the conventional managers' interpretation must be accorded great weight, but it is not conclusive of the congressional intent merely because it is the accepted definition in the field. Congress does not always employ a term in its established technical usage.¹⁰³

[6 ELR 50107]

Whether maximum productivity as used in the Act is equivalent to the narrow biological measure of maximum productivity must be resolved by determining whether the biological measure is consistent with the other language and policies of the Act. From this perspective, the biological definition is unacceptable. Its fundamental flaw is its close kinship to, if not identity with, the MSY standard, which Congress was studiously avoiding. Congress had heard MSY management criticized by leading scientists and had accepted their suggestions about new standards for management.¹⁰⁴ Moreover, in light of the standard scientific estimate that marine mammal populations are maximally productive in a biological sense at 50 to 60 percent of their natural population levels,¹⁰⁵ the biological definition of maximum productivity contradicts the stated congressional objective of maximizing the number of animals in marine mammal populations and maintaining the populations at the carrying capacity level.¹⁰⁶

Economic measures of productivity present much the same interpretational problems as the biological measure, because the economic yield from an animal population is a function of the number of animals available for exploitation. If anything, management for economic productivity is apt to be more destructive of the population and less mindful of the ecosystem than a scrupulous application of MSY management — witness the unfortunate results of unregulated or weakly regulated commercial exploitation of marine mammals that inspired the Marine Mammal Protection Act.¹⁰⁷

Plausible alternative measures of productivity are more compatible with a policy of restoring populations to and maintaining them at their ecologically acceptable maximum levels. One is biomass, the aggregate weight of all the animals in the population. Even when employed as a guideline for commercial management,¹⁰⁸ the concept of biomass favors the production of the largest animals, leading to management of a population for an are distribution with a high proportion of mature animals, which may differ considerably from the age distribution of a population at the MSY level.

In keeping with the Act's stress on ecosystem management, another appropriate measure of productivity is the ecological impact that a population produces.¹⁰⁹ Productivity in terms of ecological functions, like biomass, correlates to the total population of the species and to the proportion of mature animals, which generally produce a greater impact on the environment than the immature. Ecological productivity as reflected in impacts on the ecosystem would appear to be maximized at or near the highest population level for most ecological functions: consumption of food, impact on terrestrial, ice, or marine habitat, impact on the balance among other species in the same environment, and so forth. Management for ecological productivity would automatically bring into consideration the adverse effects of the species's impact on its environment. Thus, if a large seal population were depleting a certain fish stock or destroying the ecology of its own rookeries, maintaining that population at a high level would be ecologically counterproductive, and control measures, including systematic taking, would be called for.

The variety of plausible measures of maximum productivity that are consonant with the definitional framework into which the term was introduced supports the presumption that maximum productivity should be read in a loose, expansive sense. The apparent congressional understanding, subject to modification in light of scientific evidence, is that maximum productivity thus defined occurs, for most species, at or near the maximum number of animals. Management is necessary primarily to ensure that the population is always kept within the carrying capacity of the habitat and that it does not adversely affect other ecosystem elements. In particular, the managers should adjust for man-induced alteration or restriction of the habitat of the species, whether through the impact of fisheries on food resources,¹¹⁰ the appropriation or disturbance by man [6 ELR 50108] of breeding or hauling-out sites,¹¹¹ the creation of artificial imbalances in the population levels of competing species through disproportionate commercial taking,¹¹² or other such recognized or potential disturbances of the global ecosystem.¹¹³ At the same time, management should strive to reduce the scope and severity of such artificial disturbances in the future.¹¹⁴

In conclusion, it is evident that the language and structure of the Marine Mammal Protection Act and the history of its development in the Congress support the view thatt the fundamental population objective that the Act prescribes for marine mammal management is to re-establish and maintain the largest populations consistent with the welfare of the entire ecosystem. The Act describes a management program, but one that defers to the demand for a highly protective policy. Congress labored over just how to accomplish the balance between management and protection, and if its final formulation — optimum sustainable population — is ambiguous, that is precisely because Congress intended to strike a balance, to integrate the essences of the opposing positions.

Implementation of the optimum sustainable population (OSP) is just beginning. To shape OSP into a well-defined and workable management tool will require years of administrative experience and a much greater input of scientific evaluation than the scientists are yet capable of making. More likely than not, OSP will be interpreted as a range of population sizes that offer equivalent ecological benefits, thereby allowing options for management. Lawyers cannot propose a single scientifically sound definition of OSP. All that is attempted here is to delineate the broad outlines the Act gives for marine mammal population management, within which the specific administrative decisions about OSP will have to be made.

Waiving the Moratorium: The Fouke Company and the Importation of Sealskins

The Fouke Company of Greenville, South Carolina, was in the business of processing sealskins under contract to the United States and to the governments of South Africa, Uruguay, and Japan.¹¹⁵ While the United States harvest of the North Pacific fur seals continues to provide the company with business, Fouke depends on foreign sources of supply, especially some 70,000 skins per year from South Africa, for its profitability.¹¹⁶ These sources are directly threatened by the MMPA's moratorium on importation of marine mammal products.

The Fouke Company had been a target of the protectionists during the debate in Congress on the MMPA. They had argued that Fouke's exclusive contract to process sealskins from the United States harvest on the Pribilof Islands of Alaska caused the government to be unduly oriented toward commercial interests in its management of that harvest.¹¹⁷ Therefore, although the South African harvest was seldom mentioned in the legislative history, there was unusual interest in the disposition of Fouke's application, in 1973, for the statutorily provided one-year hardship exemption.¹¹⁸

Opponents of the exemption raised foreign policy as an issue. It happens that most of the South African harvest of seals occurs in Southwest Africa, known also as Namibia. Since the United Nations, including the United States, does not recognize South Africa's sovereignty over Namibia,¹¹⁹ Fouke's opponents sought to have its hardship exemption disapproved because it would give government sanction to South Africa's claim over Namibia. When the State Department refused to press the foreign policy issue, the NMFS agreed to give Fouke the one-year exemption.¹²⁰

Fouke returned in 1974 with an application to NMFS for a waiver of the MMPA's moratorium to allow import of the sealskins from the 1974 harvest.¹²¹ This application placed squarely before NMFS the question of whether South Africa's management of its fur seal herds was consistent in all respects with the policies of the MMPA, for a finding to this effect was necessary before the waiver could be granted.¹²²

[6 ELR 50109]

To make its determination, the NMFS dispatched a team of observers to South Africa during the harvest season. This team returned with one finding that mooted every other issue — that the South African harvest was conducted in an inhumane manner.¹²³ The MMPA expressly prohibits the importation into the United States of "any marine mammal if such mammal was … taken in a manner deemed inhumane by the Secretary."¹²⁴ Accepting the experts' judgment that the harvest was inhumane, the NMFS denied Fouke's application on that ground.

Fouke's next application, for skins from the 1975 South African harvest,¹²⁵ was the first, and thus far the only, private application for a waiver of the moratorium to go the full route of administrative hearings, an initial decision by an administrative law judge, and a final decision by the Secretary of Commerce. With Fouke's encouragement and advice, South Africa had improved the technique of its clubbers to bring it up to humane standards. This shifted the focus of the administrative hearing and decision-making process to other controversial aspects of the South African fur seal management program.

The most complex issue was to determine if the South African herds are at OSP and if so, how the level of harvest affects their population. For the purposes of this case, at least, Director Schoning of the NMFS decided that OSP is really a range defined on the low end by "maximum productivity" (apparently in the sense of maximum yield) and on the high end by "carrying capacity."¹²⁶ In the Director's opinion, based on data supplied by the South African government, the Cape fur seal population was within the OSP range, and an annual harvest of 70,000 would not alter that condition.¹²⁷

The South African management policy, which is openly based on the concept of maximum sustained yield,¹²⁸ appears directly contrary to the MMPA's optimum population policy. However, in his final decision, the Director found the American and South African policies compatible in two senses. First, he noted that they have as their common goal the health and stability of ecosystems. Second, the Director pointed to testimony in the record to the effect that "the level of population which results in maximum productivity is within the same general range as the level of population which results in maximum sustained yield.¹²⁹

According to the interpretation of the Act developed in this article,¹³⁰ the Director was mistaken in equating "maximum productivity" with MSY. OSP and MSY are substantially different concepts, which may occasionally coincide, but which are determined by different philosophical and scientific premises. The Director's argument fails to consider the substantial legislative history of the Act, which downplays the significance of maximum productivity as an element of the definition of OSP, and which contradicts the common assumption that productivity is to be measured by the annual yield of excess animals.¹³¹

Evaluation of the Fouke Company applications also required a thorough examination of the biology of the Cape fur seals and sealing practices in South Africa to determine the consistency of the harvest with the Act's prohibition on taking or importing marine mammals or products less than eight months old or nursing when taken.¹³²

The only Cape fur sealskins of commercial value are those of pups less than one year old. Population studies indicate that 75 percent of Cape fur seals are born by December 1, and 95 percent by December 18.¹³³ According to those figures, as many as 25 percent of the seals would not reach eight months of age until the beginning of August. However, some harvesting takes place as early as June and July, and even after August 18, five percent of the pups would still be less than eight months old. Nursing animals are probably also taken in the harvest.¹³⁴ The process of weaning in these seals is not well understood. Some research indicates that weaning takes place when the pup is about eight months old, but other research suggests that nursing continues until the mothers return to the water in October.¹³⁵ Several of the animals examined by the veterinary inspection team in August 1975, had milk in their [6 ELR 50110] stomachs and others vomited milk when attempting to flee clubbers.¹³⁶

The Act states specifically that importing any animal less than eight months old or while nursing is forbidden.¹³⁷ The Director's final decision is based on the erroneous proposition that it is sufficient to assure that most of the skins come from animals that were more than eight months old by requiring the skins to come from animals harvested in August or later.¹³⁸ The Director disposed of the nursing issue by making a legally dubious distinction between "obligate" nursing (nursing necessary for survival of the pup) and "convenience" nursing (nursing after the time when the pup is capable of feeding on solid food). Nursing after eight months was arbitrarily deemed "convenience" nursing and, therefore, outside the scope of the Act's prohibition.¹³⁹ The MMPA and its legislative history contain no discussion of such a distinction, and the plain meaning of the language is that an animal is nursing so long as it is in fact nursing, regardless of its "need" to nurse in order to survive. Furthermore, the scientific validity of a distinction between "obligate" and "convenience" nursing is nto established, and in such an instance of uncertainty, the MMPA requires a conservative — that is, protective — decision.

In an ironic denouement, even these questionable interpretations of the MMPA in Fouke's favor did not open the way for Fouke to receive the 70,000 skins from South Africa. First, the Namibian question resurfaced; the opponents of Fouke's application acquired written statements from State Department officials asserting the impropriety of sanctioning South Africa's jurisdiction by approving import of sealskins from Namibia to the United States.¹⁴⁰ After much executive to-do, including a meeting at the White House, the Director disallowed the part of the waiver that would have applied to Namibia — some 50,000 of the 70,000 total.¹⁴¹ Then, subsequent to the Director's final decision, South Africa announced that more than 70,000 seals had been killed in 1975. Since this exceeded the limit of the waiver, the entire waiver, at least for 1975, was voided, and Fouke will not import any sealskins from South Africa from the 1975 harvest.¹⁴²

Returning Management Responsibility to the States

In order to insure uniform implementation of its policies, the MMPA pre-empts state jurisdiction over marine mammals, eliminating even pre-existing state limitations on hunting by natives.¹⁴³ Yet Congress, always sensitive to states' rights and eager to allow state control whenever appropriate, was careful to provide a means for a state to resume jurisdiction over marine mammals once it had developed a management program consistent with the Act and the federal regulations promulgated pursuant to it.¹⁴⁴ The Secretary has a duty to monitor state policy to assure that consistency is maintained and to reassert federal jurisdiction whenever the state program ceases to follow federal policy.¹⁴⁵

The provision for return of jurisdiction to the states poses basic legal questions respecting the scope of authority that is returned and the standard of consistency with the Act that the state must meet before it may assume jurisdiction. The tenor of the applications submitted by the States of Alaska and California for state management authority illustrates the importance of the answers to the overall pattern of marine mammal policy.

The State of Alaska applied on January 31, 1973, for a waiver of the moratorium in order to permit limited sport hunting of walrus and for the return to the state of jurisdiction over nine species. FWS Director Greenwalt¹⁴⁶ decided in December 1974 that the walrus issue could be considered separately, and in February 1975, he published a summary of the Alaska application and proposed criteria by which to evaluate it.¹⁴⁷ Hearings were held during March and April 1975, the administrative law judge announced his recommended decision in July 1975, and in December 1975, the Director made a final decision to waive the moratorium and to return management of walrus to Alaska.¹⁴⁸ Hearings are now being held to determine the disposition of the rest of [6 ELR 50111] Alaska's request and to review the initial decision on walrus management.¹⁴⁹

California first applied in August 1974, to regain state management of the sea otter, with the avowed purpose of restricting the expansion of its range until further ecological studies are completed. After preliminary review, the Director of the FWS asked for further supporting data. California submitted a revised and much lengthier application in January 1976.¹⁵⁰ Before this application can be fully evaluated, the FWS faces a decision whether or not to list the sea otter as an endangered or threatened species.¹⁵¹ The California application is premised on the state's belief that it is not threatened or endangered.

The Department of the Interior's criteria for review of state programs, first published by the Director of the FWS as proposed rules simultaneously with notice of evaluation of the Alaska walrus application, establish certain norms for finding consistency between the state proposal and the MMPA.¹⁵² The basic requirement is that the state propose a "comprehensive management regime … based on the best available data," which parallels the Act's mandate to base decisions on the best scientific evidence.¹⁵³ The population policy of the state program should enable each species to reach the level of, and not diminish below, optimum sustainable population¹⁵⁴ while maintaining the health of the ecosystem.¹⁵⁵ However, due perhaps to the uncertainty at the federal level about the meaning of OSP,¹⁵⁶ the criteria offer no more precise statement of the goals of population management. When taking or importation is part of the program, the state must establish quotas and seasons by reference to factors specified in the federal regulations, which in turn are patterned on the statutory standards for waiver of the moratorium and regulations on taking described earlier.¹⁵⁷ These include, where appropriate, consideration of the animals' "age, sex, and size,"¹⁵⁸ "productivity in the population,"¹⁵⁹ the rate of retrieval by hunters,¹⁶⁰ and "[m]aximization of the utilization of the species,"¹⁶¹ the last related to the Act's requirement that native subsistence taking not be wasteful.¹⁶² Finally, the state program must be enforceable,¹⁶³ this is one aspect of the Act's directive to consider "feasibility of implementation."¹⁶⁴ Thus, the regulations require the state, in developing quotas and seasons, to consider all the factors mentioned in the Act and, to some extent, to amplify their meaning.

A procedural twist was added to these criteria in the Alaska walrus proceeding, the FWS published the criteria as proposed rules on the same day that it published a summary of the application. Three weeks later a prehearing conference was held at which the administrative law judge and counsel for FWS reaffirmed that the hearing was both on the proper criteria for review and on the merits of Alaska's regulations.¹⁶⁵ Until publication of the final decision of the director of FWS, the criteria for his decision remained indefinite, a circumstance sharply criticized by some parties to the hearing.¹⁶⁶

Alaska

The reason that Alaska gave for its application was [6 ELR 50112] that state management was "necessary in order to insure optimum sustainable population of marine mammal species jeopardized as a result of vague terminology and iandequacies in the law, and to provide for continuity of effective programs."¹⁶⁷ Enclosed with the application were excerpts from the Alaska Administrative Code¹⁶⁸ and reports on the status of the nine species. The legal effect of granting the application would have been to reinstate the Alaskan management regime predating the Act, which included limited sport and trophy hunting; the practical effect would have been to allow a substantial increase in the number of walrus taken.

What happened to the application after it was received is not clear. In late November 1974, Congressman Dingell asked FWS Director Greenwalt during oversight hearings what progress was being made on the application.¹⁶⁹ Shortly thereafter the FWS decided to evaluate the Alaska application as to Pacific walrus only, and a notice to that effect was published on February 13, 1975.¹⁷⁰ The notice, which included both a summary of those portions of the Alaska application relating to walrus (an expected increase of 50 takings per year) and proposed regulations covering the evaluation procedure, raised a considerable number of procedural and substantive issues. The substantive issues of most interest here are the population policy in the Alaska program and the meaning of "consistency" in § 109 of the MMPA.

Although not explained in the original application, the Alaska Constitution provides: "… [W]ildlife … belonging to the State shall be utilized, developed, and belonging to the State shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses."¹⁷¹ Alaska statutes provide for management "in the interest of the economy and general well-being of the State…."¹⁷² Within the scope of the constitutional mandate, the discretionary authority of the Board of Fish and Game to regulate wildlife use is extremely broad, authorizing any regulations that the board considers "advisable."¹⁷³ Current state regulations include bag limits, prohibitions on certain methods of taking, and a requirement that "most of the edible meat" must be removed from animals taken for subsistence purposes.¹⁷⁴

The regulations are not nearly as informative as a document on walrus policy published by the Alaska Department of Fish and Game, however.¹⁷⁵ The policy statement begins with a general introduction which notes the state's dedication to the beneficial use of wildlife and then declares that "[i]t would be a grave mistake to bow to the increasing pressures of misdirected 'preservationists' who would accept mediocrity in wildlife management in order to eliminate the raional utilization of some species by man…."¹⁷⁶ The policy statements that focus on the walrus contain references to "maximum sustainable yield," and "maximum sustained harvest," including a direct reference to "the Constitutional mandate of the State of Alaska to manage walruses on the sustained yield principle for the benefit of the resource and the people of the state…."¹⁷⁷ The policy statements and the annual bag limit of five female or subadult walruses combine to create an orientation twoard taking of walrus based upon a standard inconsistent with OSP as interpreted above.¹⁷⁸ Moreover, the Alaska statute vests considerable discretion in a board whose twelve members need only have a "general knowledge"¹⁷⁹ of their subject in contrast to the Act's high standards for the Marine Mammal Commission and its advisors.¹⁸⁰

The environmental assessment of the proposal prepared by the FWS deals predominantly with economic effects, dollar benefits to native villages and guides, and burdens on state and federal administrative machinery (readily translated into dollar values).¹⁸¹ Analysis of alternatives for population management effect is limited to the conclusory observation that, if unmanaged, the walrus will soon begin to have a detrimental effect on its habitat because current population levels are near optimum carrying capacity.¹⁸²

The administrative law judge presiding at the hearing required by the MMPA on Alaska's application reasoned his recommended decision that "since [the] OSP level for walrus exists when productivity in terms of actual number of calves produced is at a maximum …"¹⁸³ and since the walrus population was beginning to be of higher average age (and so to produce fewer calves) and to approach optimum carrying capacity of its habitat, a waiver of the moratorium of up to 3,000 animals taken per year should be allowed.¹⁸⁴ The judge's implicit equation of OSP with an MSY approach to maximum productivity is just the type of narrow biological reading that a close analysis of the Act reveals to be iandequate.

Moreover, if it is correct to interpret OSP to mean population at optimum carrying capacity, then the finding [6 ELR 50113] that the walrus is approaching optimum carrying capacity indicates that the walrus population is approaching, but not yet at, OSP. The Environmental Defense Fund took exception to the judges's logic and went on to argue that "[t]here was no showing that the proposed taking was in the best interest of the walrus or the health and stability of the ecosystem."¹⁸⁵ Despite the Fund's argument, the FWS Director incorporated the judge's reasoning in his final decision and decided to allow the waiver in order to prevent habitat deterioration, subject to certain amendments to the state program.¹⁸⁶

California

The California application seeks a waiver of the federal moratorium on taking to allow return of management jurisdiction over the sea otter to state authority. California's proposed sea otter management regime is to restrict the range of the sea otter to the central California coast by authorizing capture of sea otters on the periphery of their range and relocating the animals to areas where the otters are already well established. California alleged that state law had fully protected sea otters long before enactment of MMPA,¹⁸⁷ that state law fulfilled the fundamental purposes of the Act,¹⁸⁸ and that the federal statute was having an adverse effect on both the management program and the ecosystem because of the uncontrolled expansion of the sea otter's range. In the state's view:

Upon fulfillment of the requirements to maintain a sea otter population at optimum levels, maintenance of a non-threatened population, and maintenance of a "healthy and stable" ecosystem dominated by sea otters, there is no State law or policy of Federal restriction in the Act to require continued expansion of sea otters in California along the mainland.¹⁸⁹

California's justification for restricting the sea otter to its current range is two-fold. The first part is theoretical. The introduction of sea otters, California asserts, makes an ecosystem less healthy and stable; therefore, a restriction of the sea otter will promote the health and stability for the state's coastal ecosystems. Since maintenance of the health and stability of the ecosystem is the paramount statutory purpose and the prime criterion for assessing state programs, overriding even OSP management objectives, California claims that its policy is consistent with the Act.

The second part of the justification is practical. The sea otters consume large quantities of shellfish, and several commercially valuable species — abalone and Pismo clams among them — are part of their diet. Between traditional commercial harvesting by shell fishermen and booming recreational shellfishing, the shellfish populations are already fully exploited or over-exploited by humans in many areas. If the sea otter were allowed to populate these same regions, the state claims, either the commercial operators or the recreational users (or both) would suffer.¹⁹⁰ Thus, despite explicit legislative history to the contrary, California read into the Act a requirement to balance the protection of the sea otter against the economic and recreational uses of the marine environment.

The basic question regarding the sea otter management application is whether the California policy of controlling population expansion is consistent with the overall policy of the Act. In setting "health and stability of the ecosystem" and "optimum sustainable population" as goals for management,¹⁹¹ the Act does not directly address spatial dimensions. "Habitat" and "ecosystem" are terms usually defined by reference to existing populations, not potential ones. Neither the Act nor the state application calls for reference to historical ranges. The California program, by confining the region in which the sea otters compete for shellfish, would impose boundaries on habitat and ecosystem based on the commercial and recreational value of the shellfishing industry. The state, referring to § 2(5)(B) of the Act, argues that limitations on sea otter expansion constitute conservation measures "necessary to insure the continuing availability of those products which move in interstate commerce…."¹⁹² Relocation of sea otters is surely preferable to their illegal killing by shellfishers, but whether such controls over movement and population growth through colonization of new habitat are within the scope of the Act's definition of conservation is a legitimate question.

One provision of the MMPA provides support for a view contrary to California's. Sectionn 104 provides that if an applicant for a permit to take a marine mammal cites as his justification for the taking the overpopulation of the species, before granting the permit, the Secretary must not consider the desirability of transplanting the excess stock to a former part of the species' range. This suggests a congressional interest in restoring marine mammal population to their previous levels and ranges, which means that the MMPA's policy of replenishing species or stocks should not be constricted by the presently limited range of many depleted species.

California asked to withdraw its application for a waiver of moratorium on June 24 and to obtain an application for a scientific research permit on May 13 of this year.¹⁹³ Part of the research plan entails collecting data from areas south of the sea otter's present range [6 ELR 50114] and restricting southward expansion of the range for the purpose of establishing baseline data. Comparison of data from the controlled area and other parts of the sea otter's range would describe the effect of sea otters on a fishery.

The decision to change the application from a request for a waiver of the moratorium to a request for a scientific permit seems to amount only to a change of legal theory. However, a very basic question arises as to whether the proposed adjustments of the population more properly fall with the scope of research or management. Research often involves taking a few animals for use in some specific experimental process, but in this case would require taking all of the animal within a specified area and relocating them to the northern range so that baseline determinations can be made about the more properly fall within the scope of research or manble light, the results of the observations will constitute better scientific evidence for future management decisions. But it may be asked whether in this instance granting the research permit, which would have the same effects as managing the ecosystem by balancing the interests of the sea otters with those of the competing fishermen, is permissible in light of Judge Richey's decision.¹⁹⁴

Conclusion

Administrative implementation of the Marine Mammal Protection Act is just coming into maturity; to date, few final decisions have been made under the Act. That does not mean that its administrators have been idle; during the past three and a half years, they have been busy struggling with the Act's new concepts and philosophies, and coping with the broad sweep of its mandate, which extends to international marine mammal policy.

Because there is relatively little interest in the United States in exploiting marine mammals for consumption or sport, the administrators have devoted most of their attention to international aspects of marine mammal protection rather than to the less urgent problems within the United States. The negotiating position of the United States at the International Whaling Commission has been adjusted to accomodate the Act's precepts, as has the posture of the United States in other international fora such as the North Pacific Fur Seal Commission, the Inter-American Tropical Tuna Commission, and the Law of the Sea conferences. The international negotiations, however, have forced the administrators to grapple with some of the central perplexities of the MMPA, particularly the meaning of OSP, and the degree of consistency with its strict standards that the Act requires.

As the instances of administrative decision making under the MMPA described in this article indicate, the keynote of the Act's implementation to date is continuing uncertainty — uncertainty about the narrow legal requirements of the Act, and uncertainty about the details of the broader policy it sketches. In the future, more articulate interpretations of the Act by its administrator must be increasingly necessary.

The outstanding unresolved issue is the interpretation of optimum sustainable population. The difficulty that administrators, scientists, and legislators have had in arriving at a workable definition of the term has led some participants to call for abandoning the OSP concept and returning to some more conventional standard. Others, however, feel that the years of debate about OSP are beginning to bear fruit — that the scientists are beginning to develop criteria to evaluate a population's status that administrators will be able to employ without undue complexity or confusion. The definition that this article offers sets a legal framework within which the scientists and administrators should continue to refine the details of OSP's meaning. Once an administrative definition of OSP has been promulgated, the way will be open for full and aggressive implementation of the Marine Mammal Protection Act, and its unique management policy can truly be tested by experience.

** B.A. 1970, Yale University; J.D. 1976, The American University. Mr. Schmidt was a research assistant to Mr.Gaines and is now a summer scholar at the Environmental Law Reporter.

1. 16 U.S.C. §§ 1361-62, 1371-84, 1401-07 (Supp. II 1972), ELR 41815. Succeeding citations will use the original numbering system of the MMPA; these section numbers are listed following each section in ELR's U.S. Code print.

2. 118 Cong. Rec. 25252 (1972) (remarks of Senator Hollings, manager of the Senate bill). Senator Hollings specified that the Act seeks protection for marine mammals taken by foreign nationals on the high seas or insterritorial waters as well as providing protection within United States jurisdiction.

3. The five components listed in the text are identifiable in §§ 103 and 104 of the MMPA. The components are also enumerated in the congressional debate. 117 Cong. Rec. 44958 (1971) (remarks of Representative Clausen, co-sponsor of H.R. 10420, describing the first four components listed in the text).

4. Committee for Humane Legislation v. Richardson, 6 ELR 20500 (D.D.C. May 11, 1976), aff'd, Nos. 76-1479, -1480, -1481 (D.C. Cir. Aug. 6, 1976). See also Comment, Federal Courts and Congress Review Tuna-Porpoise Controversy, 6 ELR 10147 (July 1976).

5. Reorganization Plan No. 4, 84 Stat. 2090, 35 Fed. Reg. 15627 (Oct. 3, 1970).

6. MMPA, § 201.

7. MMPA, § 101(a) provides:

There shall be a moratorium on taking and importation of marine mammals and marine mammal products, commencing on the effective date of this Act, during which time no permit may be issued for the taking of any marine mammal and no marine mammal or marine mammal product may be immported into the United States except in the following cases: …

8. MMPA, § 103. See text at notes 29-32 infra.

9. MMPA, § 104. See text at notes 32-40 infra.

10. MMPA, § 102. Certain of the prohibitions make failure to comply with applicable regulations and permits unlawful. Other prohibitions are more specific. For example, it is unlawful to import into the United States a marine mammal that was pregnant or nursing when it was taken.

11. MMPA, § 3(7).

12. 118 Cong. Rec. 7701 (1972) (remarks of Representative Udall); id. at 25253 (remarks of Senator Hollings). Cf. MMPA, § 2(1), (3).

13. MMPA, § 103(a)(3)(A). Sen. Comm. on Commerce, Marine Mammal Protection Act of 1972, S. Rep. No. 92-863, 92d Cong., 2d Sess. 8 (1972) [hereinafter cited as Senate Report]; House Comm. on Merchant Marine and Fisheries, Marine Mammal Protection Act of 1971, H.R. Rep. No. 92-707, 92d Cong., 1st Sess. 18 (Dec. 4, 1971) [hereinafter cited as House Report].

14. MMPA, § 101(b).

15. MMPA, § 101(a)(1).

16. In addition to the permit authority, the Act provides substantial financial support for research on marine mammals. In § 110, it authorizes appropriations of up to $2.5 million per year to the Departments of Commerce and the Interior to fund research "relevant to the protection and conservation of marine mammals," conducted either by public agencies or private institutions and individuals. In § 111(a), the Department of Commerce is authorized to receive a total of $2 million for a program of research on improved fishing gear and methods for the single purpose of reducing the incidental take of marine mammals in commercial fishing. Finally, in § 207, Congress authorizes appropriations of $1 million each year for support of the Marine Mammal Commission, with the explicit provision that at least two-thirds of any money appropriated be expended on research on the methods of take, and other subjects related to the protection and conservation of marine mammals.

17. See Hearings on S. 685, S. 1315, S. 2579, S. 2639, S. 2871, S. 3112, S. 3161, Before the Subcomm. on Ocean and Atmosphere of the Senate Comm. on Commerce, 92d Cong., 2d Sess., ser. 92-56, pt. 1, at 164 (1972) [hereinafter cited as Senate Hearings].

18. MMPA, § 101(a)(2).

19. 118 Cong. Rec. 7688 (1972) (remarks of Representatives Begich and Pelly).

20. The character of the interference for which the incidental take provision affords a remedy is described in implementing regulations as follows:

"Incidental catch" means the taking of a marine mammal (1) because it is directly interfering with commercial fishing operations, or (2) as a consequence of the steps used to secure the fish in connection with commercial fishing operations: Provided, That a marine mammal so taken must immediately be returned to the sea with a minimum of injury and further, that the taking of a marine mammal, which otherwise meets the requirements of this definition shall not be considered an incidental catch of that mammal if it is used subsequently to assist in commercial fishing operations.

50 C.F.R. § 216.3.

21. In the normal context, the decision to waive the moratorium is subject to scrutiny in a formal rule-making hearing under § 103, and then may be challenged by citizen suit in the federal courts under § 104(d), authorizing court review of the terms and conditions of permits.

22. Feb. 9, 1957, [1957] 8 U.S.T. 2283, T.I.A.S. No. 3948, 314 U.N.T.S. 105.

23. MMPA, § 101(a)(3)(A).

24. See note 13 supra. The current practice of the administrators of the Act is to make no decision on waiver until a permit application is received. The applicant must specify the proposed level of take, the decision on the waiver is determined for that level, and the waiver is valid only up to that level.

25. See, e.g., Decision Concerning Waiver of Moratorium on Walrus under Regulations for a Cooperative State-Federal Conservation Program (Docket No. Wash. 75-1), 40 Fed. Reg. 59459 (Dec. 24, 1975), where a waiver was based on a finding that the population is "above the minimum range of the optimum sustainable population."

26. That is to say, a population exhibiting these characteristics is probably approaching the carrying capacity of the habitat, and therefore close to its optimum sustainable population level.

27. Supra note 4.

28. See note 13 supra.

29. See text at notes 82-91 and note 91 infra.

30. See, e.g., 118 Cong. Rec. 25275 (1972) (remarks of Senator Stevens).

31. 118 Cong. Rec. 7690 (1972) (remarks of Representatives Biaggi and Dingell).

32. Senate Report, supra note 13, at 16.

33. MMPA, § 103(d).

34. See Marine Mammal Protection Act of 1972, H.R. Rep. No. 92-1488, 92d Cong., 2d Sess. 24-25 (1972).

35. MMPA, § 104(d)(4).

36. MMPA, § 104(d).

37. MMPA, § 104(e).

38. MMPA, §§ 104(d)(5), (e)(2).

39. MMPA, § 104(b).

40. MMPA, § 104(d)(3). "The failure to sustain this burden must result in the denial of a permit." House Report, supra note 13, at 25 (emphasis added).

41. House Report, supra note 13, at 19-20.

42. MMPA, § 2(6).

43. MMPA, § 3(9).

44. MMPA, § 2(2):

[S]uch species and population stocks [ones in danger of extinction or depletion] 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.

45. OSP means a population at the limit of the long-term capacity of the environment to sustain it. A population level above OSP is therefore a population which threatens the balance of the ecosystem, a result directly inimical to the Act's goal of maintaining the health and stability of the ecosystem. See MMPA, § 2(6), quoted in text accompanying note 42 supra.

46. Actually, the statutory definition of "management" in the Act subsumes the concept of protection as well as regulated taking. See MMPA, § 3(2), discussed in text at notes 50-52 infra.

47. Text at note 42 supra.

48. MMPA, § 2(2) (marine mammal populations should not be allowed to diminish to the point where they "cease to be a significant functioning element of the ecosystem"); § 2(6) ("the primary objective of their management should be to maintain the health and stability of the ecosystem"); § 103(b)(3) ("the [administrators] shall give full consideration to … the marine ecosystem and related environmental considerations").

49. Protection of the ecosystem is the crucial factor. Absent ecological side effects, the mere decline of a commercial fishery due to marine mammal impacts does not warrant a taking program, as the following colloquy in the House debate makes clear:

Mr. Biaggi. Mr. Chairman, the committee bill requires the Secretary in setting limitations to take into consideration the "conservation, development, and utilization of fishery resources" and "the economic and technological feasibility of implementation." Is nto this the same as saying if the abalone fishing industry, for example, was allegedly being threatened by the sea otters, the Federal government could order a selective killing of the otters to protect the fishing industry?

Mr. Dingell. No. The answer to that is the basic consideration to be kept in mind by the Secretary under 102(a) is that taking must not be to the disadvantage of the species of marine mammals. The protection of fish and shell fish is secondary.

118 Cong. Rec. 7690 (1972).

50. MMPA, § 3(2).

51. See discussion of carrying capacity, text at notes 96-99 infra.

52. As the statutory definition phrases it, "optimum carrying capacity" is "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." MMPA, § 3(8) (emphasis added).

53. MMPA, § 3(1). In a strict legal sense, a species is not "depleted" under the Act until it has been formally designated as such by the Secretary of Commerce or the Interior, as appropriate.

54. Except for scientific research purposes or for such native taking as may be allowed, the Act absolutely prohibits taking from a designed depleted species or stock. MMPA, § 102(b)(3).

55. MMPA, § 2(2), quoted in note 44 supra.

56. Optimum carrying capacity is defined as the habitat's ability to support an optimum sustainable population, while an optimum sustainable population must be managed with the optimum carrying capacity of the habitat in mind. See MMPA, § 3(8), (9).

57. MMPA, § 101(a).

58. MMPA, §§ 101(a)(1), (2), 101(b). For a detailed description of the moratorium and the exception, see text at notes 7-28 supra.

59. MMPA, § 101(a)(3)(A). The quoted language is understood by the administrators of the Act to require, at a minimum, that a species's population level be determined to be at or above OSP before a waiver will be granted to permit its taking. See text at notes 23-24 supra.

60. Supra note 50.

61. MMPA, § 103(a).

62. Congress was particularly impressed by the testimony it heard about overpopulation of seals on the Farne Islands of Great Britain. Hearings on Marine Mammals Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 92d Cong., 1st Sess. ser. 92-10, at 289-90 (1971) [hereinafter cited as House Hearings]. House Report, supra note 13, at 19. For further discussion of this point see text at notes 83-91 supra.

63. Supra note 4.

64. Id. at 20505.

65. Id. at 20506.

66. The bill reported out of committee in the House was understood to create a de facto moratorium. House Report, supra note 13, at 20. The moratorium amendment on the floor was accepted by the author of the bill as making explicit the intention of the legislation. 118 Cong. Rec. 7702 (1972) (remarks of Congressman Anderson).

67. See text at note 43 supra.

68. H.R. 690, H.R. 4370, H.R. 6554, H.R. 6804, H.R. 10420, H.R. 10569, 92d Cong., 1st Sess., reprinted in House Hearings, supra note 62, at 3-23.

69. Senate Hearing, supra note 17, at 3-137.

70. H.R. 6554, S. 1315.

71. As such, it received modest support from the Nixon Administration. It is reprinted in House Hearings, supra note 62, at 13-19.

72. Reprinted in Senate Hearings, supra note 17, at 103-37.

73. Reprinted, id. at 69-102.

74. Reprinted, id. at 47-68.

75. H.R. 10420, § 2(2), 92d Cong., 1st Sess. (1971); House Hearings, supra note 62, at 13.

76. House Hearings, supra note 62, at 146, 147.

77. This is not to be confused with the Marine Mammal Commission, which was created by the Act. Dr. Ray is a former member of the Marine Mammal Commission's Committee of Scientific Advisors.

78. House Hearings, supra note 62, at 401.

80. E.g., id. at 88-104 (testimony of Ms. Herrington, representing Friends of Animals).

81. In addition to Drs. Talbot and Ray, supra notes 76 and 78, witnesses favoring management included representatives of the Wildlife Management Institute, the Izaak Walton League and the National Audubon Society. House Hearings, supra note 62, at 394-98, 503-18.

82. Id. at 75 (testimony of Mr. Kimball).

83. H.R. 10420, as amended, § 3(6), 92d Cong., 1st Sess. (1971); House Report, supra note 13, at 2.

84. Id. at 19, 20.

85. Id. at 19. The recent court decision on the MMPA stresses the concept of managing to benefit the marine mammals themselves. Committee for Humane Legislation v. Richardson, supra note 4.

86. House Report, supra note 13, at 22.

87. Id. (commentary on § 2(6)).

88. Id. at 19.

89. The House Report summarizes the Committee's view as follows:

The scientists made the point that mans' thumb is already on the balance of nature and that to remove it altogether might be far more cruel and damaging than would be the effects of a responsible management program. Witnesses called to the attention of the Committee the situation in the British-held Farne Islands, where a strict "hands-off" policy has resulted in thousands of starving and disease-ridden seals. And it is unfortunately a fact of life that the class of animals which suffers the most in these circumstances is the young.

In these circumstances the Committee simply could not accept the philosophy that inaction in the circumstances is the best policy.

Id.

90. Id. at 24. The strong implication of this language is that regulated taking is allowable only in these cases. Congressman Anderson, author of the bill, apparently desired this interpretation, as evidenced by a statement of his during debate: "In the event that a specie[s] of marine mammal is found to overpopulate an area … then the Secretary may issue … a permit allowing the killing of a selective number of such specie[s]." 118 Cong. Rec. 7689 (1972) (emphasis aded).

91. 117 Cong. Rev. 44957 (1971) (remarks of Congressman Anderson), 44958 (remarks of Congressman Clausen); 118 Cong. Rec. 7686 (1972) (remarks of Congressman Dingell, manager of the bill).

92. The vote was 199-150 in favor of the bill; a two-thirds majority was required under the no-amendment rule. The entire December debate is at 117 Cong. Rec. 44947-62 (1971).

93. The moratorium amendment was accepted by Congressmen Dingell and Anderson, manager and author of the bill respectively, and was accepted by voice vote. 118 Cong. Rec. 44947-62 (1971).

94. See generally Senate Hearings, supra note 17.

95. S. 3161, § 3(7), 92d Cong., 2d Sess. (1972), in Senate Hearing, supra note 17, at 106.

96. S. 3161, §§ 2(2), 3(6), 3(8), 92d Cong., 2d Sess. (1972), in Senate Hearings, supra, note 17, at 103-04, 106 (emphases added).

97. MMPA, §§ 2(2), 3(2), 3(9).

98. Council on Environmental Quality, The Conservation of Wild Living Resources 23 (draft report of a conference held at Airlie House, Virginia, winter 1975). Senator Stevens apparently used it in just this sense. 118 Cong. Rec. 25258 (1972).

99. See text at note 86 supra.

100. See United States v. Plesha, 352 U.S. 202, 205 (1957); Tidewater Oil Co. v. United States, 409 U.S. 151, 158-59 (1972).

101. See text at notes 76, 78, and 87 supra.

102. U.S. Fish and Wildlife Service and National Marine Fisheries Service, Consideration of a Waiver of the Moratorium and Retum of Management of Certain Marine Mammals to the State of Alaka (June 1975), Sectionn D, passim G. Bertrand, Optimum Sustainable Populations and the Management of Marine Mammals: A Report to the Marine Mammal Commission 4-8 (Mar. 10, 1975) (final report under contract No. MM5AC010, in the Marine Mammal Commission files).

103. In the legislative evolution of the very term OSP, the House adopted a definition for "optimum sustained yield" that bore little relation to the usage of portions of the term by resource managers, a definition based, in fact, upon a population criterion rather than a yield criterion. Compare the definition quoted in the text (supra at note 83), with the following one by a fisheries economist: "The maximum sustained yield is achieved when the annual catch is at the highest level that can be sustained over time…. Optimum sustainable yield generally means the same thing, except thatt this goal permits the achievement of something less than the maximum where the use of the stock is interrelated with the use of other stocks…." F. T. Christy, Alternative Arrangements for Marine Fisheries: An Overview 23 (1973) (emphasis added).

104. In particular, the suggestions of Dr. Talbot (House Hearings, supra note 62, at 147) and the Wildlife Management Institute (Id. at 505-07) were adopted almost verbatim.

105. See Bertrand, surpa note 102, at 8, and authorities cited there. The International Whaling Commission has revised its percentage figure for calculating MSY from 50 percent to 60 percent of natural levels. Dept. of Commerce, Report of the United States Delegation to the Twenty-Seventh Meeting of the International Whaling Commission, London, England, June 23-27, 1975 at 4.

106. The carrying capacity level would be equivalent to the average natural population level, except thatt environmental disruption has probably reduced the carrying capacity for most species. However, artificially created disturbances may have increased the carrying capacity for some species, like the seals of Antarctica, where more krill is available following the depletion of the krill-eating whale stocks.

107. Colin W. Clark has demonstrated how economic management of species with low reproductive rates favors overexploitation or even extinction of the species by the managers. C. Clark, The Economics of Overexploitation, 181 Science 630-34 (Aug. 17, 1973). We use the term "economics" in its everyday non-technical sense to connote concentration on material or financial value. In recent technical parlance, a true "economic" measure of productivity would encompass intangible benefits, even psychic rewards, related to marine mammals. In this sense, economic measures of productivity may provide a high degree of flexibility.

108. This concept has been proposed to the International Whaling Commission by the Scientific Committee of the Commission. Dept. of Commerce, Report of the United States Delegation to the Twenty-Sixth Meeting of the International Whaling Commission, London, England, June 24-28, 1974 at 7.

109. This may well have been what Senator Stevens understood maximum productivity to mean. In debate on the Act, he makes this remark about optimum carrying capacity: "It also requires a judgment, not only on the maximum population of the species, but on the maximum total productivity of the environment including all constituent elements." 118 Cong. Rec. 25258 (1972).

110. This was cited as a possible limitation on the maximum population now achievable by the northern fur seals, whose food resources in the Bering Sea are being extensively fished. Interview with Dr. William Aron, Chief of the Office of Ecology and Environmental Conservation, National Oceanic and Atmospheric Admin., Jan. 12, 1976).

111. This apparently occurred with the gray whale, which once bred in San Diego harbor. Id.

112. This has been raised as a possible problem with the replenishment of depleted fin and sei whale stocks and their competition with the relatively abundant minke whale. Id.

113. Pollution of the marine environment with oil, mercury, DDT and other more or less toxic substances may become a critical factor in determining the proper size for marine populations.

114. That is, the protection of marine mammals envisioned by the Act is a more affirmative policy than one of overseeing the dwindling of stocks due to degradation of the marine environment. At the very least, it implies an effort to maintain populations at their current levels, and consequently a program to protect the capability of the ecosystem to support such populations.

115. For a brief summary of the company's operations, see letter from Paul A. Lenzini, Counsel, to Sen Ernest F. Hollings (Mar. 20, 1972), reprinted in Senate Hearings, supra note 17, at 684.

116. George Heinz, President of Fouke Co., stated in his hearing testimony that in 1973, 52.9 percent of the skins Fouke processed came from South Africa and Uruguay. Testimony of George Heinz, In the Matter of the Fouke Company Application to Waive the Moratorium on the Importation of Cape Fur Seal Skins, Docket No. MMPAH-1, 1975, at 6.

117. House Hearings, supra note 62, at 256-88.

118. The exemption is provided by MMPA, § 101(c).

119. International Court of Justice, Advisory Opinion of 21 June 1971, "Legal Consequences for States of the Continued Presence of South Africa in Namibia (Southwest Africa) Notwithstanding Security Council Resolution 276 (1970)."

120. 38 Fed. Reg. 26221 (Sept. 19, 1973).

121. National Marine Fisheries-Service, Consideration of Waiver of the Moratorium on the Importation of South African Sealskins (draft environmental impact statement 740619, Appendix 7) (Apr. 18, 1974).

122. MMPA, § 101(a)(3)(A):

Provided further, however, that no marine mammal or no marine mammal product may be imported into the United States unless the Secretary certifies that the program for taking marine mammals in the country of origin is consistent with the provisions and policies of this Act. Products of nations not so certified may not be imported into the United States for any purpose, including processing for exportation.

Emphasis in original.

123. Reports of W. M. Wass, D.V.M., and L. McDonald, D.V.M. The reports are a part of the hearing record, In re Waiver of Moratorium, Marine Mammal Protection Act of 1972, The Fouke Co., Inc., Docket No. MMPAH-1, available at the Office of the Director of NMFS.

124. MMPA, § 102(b)(4).

125. 40 Fed. Reg. 2852 (Jan. 16, 1975).

126. 41 Fed. Reg. 7537, 7538 (Feb. 19, 1976).

127. Id.

128. See "Management and Control Measures with Regard to Sealing in South Africa and South West Africa." (undated mimeograph, part of the hearing record, In re Waiver ofMoratorium of Marine Mammal Protection Act of 1972, The Fouke Co., Inc., Docket No. MMPAH-1, available at the Office of the Director of NMFS).

129. Supra note 126, at 7538 n. 7.

130. See text at notes 42-46 supra.

131. See text at notes 67-79 supra.

132. NMPA, § 102(b)(2).

133. Ninety percent of the pups are born between November 13 and December 18, with a mean birth date of December 1. Memorandum from Dr. George Y. Harry to Dr. Albert K. Sparks (June 12, 1975) reviewing a paper by P. D. Shaughnessy and P. B. Best, "The Pupping Season of the Cape Fur Seal, Arctocephalus pusillus pusillus" (mimeograph). See also P. D. Shaughnessy, "Population Level, Optimum Sustainable Population, Pupping Season, and Nursing of the Cape Fur Seal" (mimeograph) (Aug. 1975).

134. See reports of W. M. Wass, D.V.M., and L. McDonald, D.V.M., supra note 123, who visited South Africa in 1974 and 1975 to observe harvest procedures for the National Marine Fisheries Service. As part of the observation the doctors examined some animals to see whether skulls had been fractured, whether "sticking" had been deep enough, and whether milk was present in the stomach of dead animals.

135. See P. B. Best and P. D. Shaughnessy, "Nursing in the Cape Fur Seal, Arctocephalus pusillus pusillus" (undated).

136. Report of Wass and MacDonald, supra note 123.

137. MMPA, § 102(b)(2).

138. The Director, by characterizing the Act as a "wildlife management Act" the subject of which is "species" and "populations" and not individual specimens, decided that determining a mean birthdate was sufficient. 41 Fed. Reg. 7538-39 (Feb. 19, 1976).

139. Criteria on voluntary nursing are published at 40 Fed. Reg. 17845 (Apr. 23, 1975).

140. Letters sent by the State Department and oral testimony presented at the hearing by Deputy Assistant Secretary Charles James were struck from the record as beyond the authority of the administrative law judge to consider. Nevertheless, the documents are part of the hearing record as rejected exhibits.

141. 41 Fed. Reg. 7537, 7539 (Feb. 16, 1976).

142. Order of Judge Robinson, Federal District Court, D.C., dismissing suit against Fouke. The Center for Law and Social Policy filed suit on behalf of six plaintiffs against the Commerce Department and Fouke Co. to challenge the waiver and regulations which, as published, would allow taking of up to 70,000 Cape fur seals for an indefinite period. Judge Robinson dismissed the case for the reason that the permit, once violated by excessive taking, is void. Because that reasoning was incorrectly ascribed to the government, Justice Department lawyers filed a motion to amend. The Center for Law and Social Policy then filed a Motion to Vacate the judgment.

143. MMPA. § 109(a)(1).

144. MMPA. § 109(a)(2).

145. MMPA, § 109(a)(3). An alternative mode for federal-state cooperation authorized by this section is cooperative agreements between the Secretary and appropriate state officials providing for administration and enforcement. MMPA, § 109(c). While the concept of a cooperative agreement as a tool of wildlife management is not new, the only use of it in the marine mammal area has been to provide added protection for manatees in the Crystal River area of Florida.

146. Pacific walrus, sea otter, polar bear were to be determined by FWS. Northern (Steller) sea lions, harbor seals (including spotted seals), ringed seals, ribbon seals, bearded seals and beluga whales are under the jurisdiction of National Marine Fisheries in the Department of Commerce.

147. 50 C.F.R. §§ 18.51 et seq. (proposed), 40 Fed. Reg. 6664 (Feb. 13, 1975).

148. 40 Fed Reg. 5949 (Dec. 24, 1975).

149. Hearings were held beginning June 29, 1976, in Anchorage, Alaska, and continue in Nome and Bethel, Alaska; they will reconvene in Arlington, Virginia in October.

150. The sea otter application is currently under preliminary review by the Marine Mammal Coordinator of the FWS.

151. The FWS proposed, 40 Fed. Reg. 44412 (Sept. 26, 1975), to designate the sea otter as an endangered species under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., ELR 41825.

152. 50 C.F.R. § 18.55, supra note 147, at 6666.

153. MMPA, § 101(a)(3)(A).

154. 50 C.F.R. § 18.55(d), supra note 147, at 6666. The final rule at 40 Fed. Reg. 59043 (Dec. 24, 1975) requires maintenance at OSP "unless the state can show that some other population level more properly maintains the health and stability of the ecosystem." When this section was re-proposed for the reconsideration of walrus and the initial consideration of the eight species, the provision was rewritten to delete the "unless …" clause. See 50 C.F.R. § 18.55(d), 41 Fed. Reg. 15170 (Apr. 9, 1976).

155. 50 C.F.R. § 18.55(e), supra note 147, at 6666, and 50 C.F.R. § 18.55(e), 41 Fed. Reg. 15170 (Apr. 9, 1976).

156. The final version of the regulations proposed in February 1975, 40 Fed. Reg. 59442 (Dec. 24, 1975), is of some interest even though it has no effect on any subsequent decision.

157. 50 C.F.R. § 18.55(f), supra note 147, at 6666, and 50 C.F.R. § 18.55(g), 41 Fed. Reg. 15171 (Apr. 9, 1976).

158. Compare 50 C.F.R. § 18.55(f)(2), supra note 147, at 6666, and 50 C.F.R. § 18.55(g)(2), 41 Fed. Reg. 15171 (Apr. 9, 1976) with MMPA § 103(c)(2).

Compare 50 C.F.R. § 18.55(f)(3), supra note 147, at 6666 and 50 C.F.R. § 18.55(g)(3), 41 Fed. Reg. 15171 (Apr. 9, 1976) with MMPA, § 3(11).

159. Compare 50 C.F.R. § 18.55(f)(7), supra note 147, at 6666, and 50 C.F.R. § 18.55(g)(7), 41 Fed. Reg. 15171 (Apr. 9, 1976) with MMPA, § 103(9).

160. 50 C.F.R. § 18.55(f)(9), supra note 147, at 6666; 50 C.F.R. § 18.55(g)(9), 41 Fed. Reg. 15171 (Apr. 9, 1976).

161. 50 C.F.R. § 18.55(f)(10), supra note 147, at 6666; 50 C.F.R. § 18.55(g)(10), 41 Fed. Reg. 15171 (Apr. 9, 1976).

162. MMPA, § 101(b)(3).

163. 50 C.F.R. § 18.55(f)(12), supra note 147, at 6666; 50 C.F.R. § 18.55(g)(12), 41 Fed. Reg. 15171 (Apr. 9, 1976).

164. MMPA, § 103(b)(5).

165. These issues, as well as the legal issue on the scope of native taking, were among 21 issues included in the administrative law judge's pretrial order.

166. Richard Gutting, lead counsel for the opponents to the action and representing the Environmental Defense Fund, argued due process and Administrative Procedure Act issues, questioning primarily the propriety of covering in one hearing both the merits and the standards by which to judge those merits with notice published just two and one-half weeks before the prehearing conference. Later, during the evidentiary hearing, Gutting moved to suspend the hearings until the criteria were finally published and adequate data available to support a ddecision on the waiver. The administrative law judge denied the motion with this explanation, which seems to repeat and not to refute counsel's argument:

Nothing … becomes effective until [the Director] considers and publishes it in the Federal Register, and those are the final rules and regulations by which people subject to this regulation are to be bound. Until that time, there's nothing published in the Federal Register that's binding on anyone….

In re Waiver of Moratorium of Walrus, MMPA Docket No. 75-1, Transcript 886.

167. Letter from Governor Egan of Alaska to FWS Director Greenwalt, Jan. 31, 1973. Application, In re Waiver of Moratorium of Walrus, MMPA Docket No. 75-1.

168. 5 Alas, Admin. Code, Part 81.

169. House Merchant Marine and Fisheries Committee, hearings of Nov. 22, 1974 (copies of transcript at the Committee's offices).

170. Supra note 147.

171. Alaska Const., art. 8, § 4.

172. Alaska Stats. § 16.05.020 (1961).

173. Alaska Stats. § 16.05.250 (1961).

174. 5 Alaska Admin. Code 81.217 defines "most of the edible meat."

175. Alaska Dept. of Fish and Game, Alaska Game Management Policies (undated), included as Appendix A of FWS, Environmental Assessment, (Feb. 12, 1975) [hereinafter cited as environmental Assessment].

176. Id. at A-2.

177. Id. at A-3.

178. See text accompanying notes 42-46, supra.

179. Alaska Stats. § 16.05.240 (1961). Despite the wording of the statute, the staff of the board is known to be composed of highly knowledgeable scientists.

180. MMPA, §§ 201, 203.

181. Environmental Assessment, supra note 175, at 20-25. A procedural question raised was whether the FWS Director had properly decided not to proceed under NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C), ELR 41009.

182. One sentence is used repeatedly in the section on alternatives, Environmental Assessment, supra note 175, at 21-24.

183. Recommended Decision, at 38 (July 10, 1975).

184. Id. at 41.

185. Exceptions of Environmental Defense Fund to Recommended Decision (July 31, 1975) at 7.

186. 40 Fed. Reg. 59459 (Dec. 24, 1975). The amendments are at 40 Fed. Reg. 59460.

187. See Cal. Fish & Game Code § 1700. The application also mentions sea otter sanctuaries.

188. Specifically, the state claims to have met the requirements of 16 U.S.C. § 1361(1)-(3), ELR 41815.

189. Operations Research Branch, California Dept. of Fish and Game, A Proposal for Sea Otter Protection and Research and Request for the Return of Management to the State of California (Jan. 23, 1976).

190. See information submitted in support of the application, supra note 189.

191. 16 U.S.C. § 1361(6), ELR 41815.

192. Letter from E.C. Fullerton, California Dept. of Fish and Game, to Lynn A. Greenwalt, Director, FWS, Jan. 23, 1976 accompanying application, supra note 189.

193. Letter from E. C. Fullerton, California Dept. of Fish and Game, to Lynn A. Greenwalt, Director, FWS, June 24, 1976 (withdrawal). Letter from E. C. Fullerton, California Dept. of Fish and Game, to Lynn A. Greenwalt, Director, FWS, May 13, 1976 (scientific permit application). These letters supplement other communications between the state and federal government in the matter.

194. See note 4 supra.

6 ELR 50096 | Environmental Law Reporter | copyright © 1976 | All rights reserved