Wildlife Protection: Marine Mammals, Endangered Species Threatened in Congress by Economic Concerns

The 95th Congress has witnessed intensified attacks on wildlife conservation statutes that are chipping away at the Administration's expressed concern for environmental values and that threaten to undo the national commitment made in prior years. The billion-dollar tuna fishing and canning industry has collided with the requirements of the Marine Mammal Protection Act of 1976¹ (MMPA) over the incidental killing of porpoises while using high-technology fishing practices. After complex litigation on both coasts, a three-month strike by the tuna fishermen, and a conciliatory Commerce Department pronouncement, the House of Representatives passed a bill that would relax the MMPA requirements in order to get the fleet back to sea. The issue is now under consideration in the Senate. When the Sixth Circuit Court of Appeals² blocked completion of the Tellico Dam on the Little Tennessee River because the project threatened the continued existence of the snail darter, a three-inch fish found only in the portion of the river that would be flooded by the dam, a public outcry arose against the tight strictures of the Endangered Species Act. Hearings on the Act are expected in the near future in both Houses of the Congress.

Tuna-Porpoise Controversy

One impetus behind passage of the Marine Mammal Protection Act was public outrage at the enormous numbers of porpoise killed each year by tuna fishing. The American tuna fleet, utilizing the knowledge that porpoise swim near the surface above the Pacific yellowfin tuna, set out their huge nets, called purse-seines, around schools of porpoise, drawing them in with the tuna, with the result that many porpoise drowned or were severely injured from becoming entangled in the nets. As a consequence, the MMPA set as an "immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate."³ Because of the strictness of the Act, fishermen were given a two-year grace period to develop alternate technology to solve the problem.

Litigation

The controversy in the courts began a year ago when the federal district court for the District of Columbia held that the National Marine Fisheries Service (NMFS), which is responsible for implementing the MMPA, had failed to protect porpoises as required by the Act.⁴ The court said that NMFS improperly balanced the mammals' interests and the interests of the tuna industry where the Act required that protection of the porpoises be paramount. Last October, NMFS declared a halt to fishing by the United States tuna fleet for the remainder of 1976 by banning the importation of tuna caught "on porpoise" because the 1976 quota for incidental killing of porpoises had been reached.⁵ The tuna boats were able to keep fishing for another three weeks by obtaining an injunction against this order in the federal district court in San Diego, home port of the tuna fleet, but the fishing was finally stopped when the Ninth Circuit Court of Appeals upheld the government's ban, and the Supreme Court refused to grant emergency relief.⁶

As 1977 began, NMFS failed to issue the new quotas for permissible incidental takings of porpoises, thereby leaving the fishermen in limbo as to what regulations governed their operations. In January, the San Diego district court again acknowledged the primacy of the economic interests of the tuna industry and enjoined enforcement of the MMPA until a 1977 permit could be issued,⁷ essentially allowing the fleet to take porpoises according to the findings of an administrative law judge issued four days earlier. Because of uncertainty on the part of the tuna fishermen as to how they could ultimately go about their business because of the government's failure to establish the 1977 quotas, however, the tuna boats, backed by the industry, refused to put to sea. The strike idled approximately 5,000 fishermen and cannery workers in the San Diego area.

There followed in quick succession a Ninth Circuit decision overturning the district court's injunction against enforcement of the MMPA,⁸ the 1977 regulations issued by NMFS establishing a quota of 59,050 porpoises allowed to be killed incidental to commercial fishing,⁹ and a decision of the District of Columbia Circuit Court of Appeals directing that the tuna fishermen were permitted to take porpoises incidental to their fishing until April 30 under an extension of their permit based on the 1976 regulations, which allowed 78,000 takings, or until a permit for 1977 was issued.¹⁰

In mid-April, the 1977 permit was issued¹¹ to the tunaboat association, to which most of the 139-boat United States fleet belongs, but the fishermen still refused to go to sea. They persisted in their argument that the NMFS restriction on taking of porpoises was too stringent. [7 ELR 10125] The American boats are in competition with foreign fleets, which supply half the tuna canned in the United States but which have not been held to the same restrictions on fishing practices. The very high rate of return, as much as $1 million gross from a three-month cruise, llows boat owners to invest in costly new equipment, but the incentive is to net tuna as quickly as possible before the industry reaches its annual porpoise quota. Because of the additional care and time that would be required in minimizing the porpoise deaths, the tuna fishermen felt that the NMFS quota of 59,050 was too low.

Also in mid-April, a new round of lawsuits began. In San Diego, the tuna fishermen sought to invalidate the new NMFS regulations and quota,¹² and in Washington, one of the environmental groups that won the first suit a year ago also sought to invalidate the regulations and permit as being in violation of the MMPA.¹³ In May, the two suits were consolidated in the District Court for the District of Columbia. Anticipating success in Congress, however, the tuna fishermen withdrew from legal action.

Congressional Action

The tuna fishermen's continued strike brought pressure on Congress to protect the industry and on NMFS, the Commerce Department, and President Carter to modify the strict enforcement of the MMPA. At the end of April, NMFS made a concession to the fishermen by announcing that although the quota allowed no taking of one type of porpoise, the eastern spinner dolphin, there would be no violation of the regulations if eastern spinners were accidentally killed although none were observed when the nets were set.¹⁴

What finally returned the tuna fishermen to work in mid-May was a bill amending the Marine Mammal Protection Act that was shepherded through the House of Representatives by Congressman Murphy (D-N.Y.) to provide the fishermen relief from the restrictive quotas.¹⁵ The Murphy bill, reported out of the House Merchant Marine Committee in May, called for quotas of 78,900 allowable porpoise kills in 1977, 1978, and pro-rated for part of 1979. When the Murphy bill reached the House floor on June 1, Congressman McCloskey (R-Calif.) was able to make one significant change before the bill passed.¹⁶ The 1977 quota was lowered to 68,910, which was the figure proposed by the Carter Administration, but reductions in subsequent years could be made by the Secretary of Commerce if new technology made such reductions possible or if the porpoise populations suffered too much depredation in 1977. The original Carter-McCloskey proposal would have set mandatory reductions of 50 percent reductions from the 1977 figure by 1980 and an additional 50 percent every two years thereafter, but this proposal was defeated.

The ultimate question concerning the 1977 MMPA amendments is whether they will actually achieve the drastic reduction in mortality of marine mammals that the original Act envisioned. In this clash between those concerned with conservation of wildlife resources and the economic interests of an industry, the answer is by no means certain. While the House bill's quota for 1977 is substantially under the number of porpoises that have been killed in recent years, it remains substantially above the figure that could be achieved by careful use of available technology.¹⁷ The tuna industry failed to use both its two-year statutory grace period and the subsequent neglect in enforcement by NMFS to make a good-faith effort to comply with the law.¹⁸ Then, as public concern mounted over this disregard, the fishermen resorted to a de facto strike, the publicized threat of economic collapse of an industry that supplies a cheap and popular food source, and congressional pressure to wring further concessions.

On the other hand, achieving the purposes of the MMPA by further reducing porpoise mortality will not destroy the tuna industry. Tunaboats rely on the porpoise to find the tuna swimming under the surface. The cost in time and money of careful use of available technology, much of which is already on the boats, would place only as insighificant additional burden on the industry. Even requiring the industry to pay for the costs of further research and of government observers stationed on the boats would not substantially increase the economic burden on an industry that has proven highly profitable. In fact, the House bill already requires the industry to pay $2 million towards an expected cost of $4-5 million for this work.

The tuna fishermen made the additional argument that imposing low porpoise quotas on them would ultimately decrease the porpoise population because foreign fishermen, who are not under the same restrictions as the American boats, kill two and a half times the number of porpoises in their purse seine fishing. Having to be less careful, the foreign boats work faster at filling their holds and could obtain a larger share of the market. Two points refute this argument, however. Foreign fishing fleets do not use the purse-seine method as much as does the American fleet. Most foreign tuna boats favor the older methods of pole-and-line fishing or trailing lines behind the boat with many baited hooks. The high-technology purse-seine method is very expensive, and only the American fleet has been able to afford this investment to [7 ELR 10126] any substantial degree. The second and more important point is that the MMPA already contains a provision allowing a ban on the import of tuna caught with technology that results in greater porpoise kills than the United States standards permit.¹⁹ More strict enforcement of this provision, including bilateral negotiations, which are also provided for in the House bill, could alleviate this problem.

The next step in the tuna-porpoise controversy is for the Senate to complete its consideration of the House bill. No hearings have yet been scheduled. Nevertheless, the Carter Administration will play a larger role in the Senate rather than merely proposing amendments in the committee hearings and relying on a member of the opposing party to carry its fight in the floor consideration as was done in the House of Representatives. The House bill contains a 1977 quota that the Carter Administration backs, but the Senate may attempt to impose mandatory reductions in subsequent years, which would be a stronger incentive than the House version's discretionary reduction. In addition, there may be additional efforts to adjust the standards of penalties and incentives for over- and under-killing of porpoises. Among the considerations that promise to be addressed will be the wisdom of industry-wide quotas, as now exist, which simply create a race to fill holds quickly and provide no individual incentive to reduce porpoise mortality,²⁰ and whether there should be individual porpoise-taking licenses through an auction system.

Endangered Species Act Issues

While the Endangered Species Act (ESA)²¹ has not been under such concentrated industry pressure, successful enforcement of the Act in the last few years²² has signaled a countervailing concern that it too rigidly ignores economic development considerations.

Similar to the Marine Mammal Protection Act, the Endangered Species Act contains strict and absolute prohibitions against taking any animal and plant species defined as endangered or threatened by the federal government. Section 7 of the ESA specifically applies the prohibition to government agencies, and § 9 covers "any person subject to the jurisdiction of the United States."

After the Sixth Circuit stopped completion of the Tellico Dam because it threatened the tiny snail darter, several bills were introduced in the House to try to ameliorate the Act's apparent harshness.²³ Hearings in both Houses of Congress are planned for this summer or early fall to deal with various aspects of the statute. On the Senate side, the Resource Protection Subcommittee of the Environment and Public Works Committee has scheduled general oversight hearings on the Endangered Species Act for July 19-21. Although no specific agenda has been announced, the hearings will probably also consider a bill that has been submitted by Senator Culver, the subcommittee chairman, requiring the Fish and Wildlife Service (FWS) to issue a NEPA environmental impact statement (EIS) each time it designates an area as "critical habitat" for an endangered species.²⁴ FWS might argue that its designation of a "critical habitat" entails an environmental assessment that is functionally equivalent to preparation of an EIS and that such designations should therefore be exempt from NEPA's impact statement requirements.²⁵ Application of this "functional equivalence" exemption has thus far been limited to the Environmental Protection agency, however, and it may not be available to other agencies engaging in environmental protection activities.²⁶ In addition, preparation of an environmental impact statement is a time-consuming process, although President Carter, in his environmental message, ordered a rapid government-wide effort to identify all critical habitat under federal jurisdiction "to avoid the possibility that such habitats will be identified too late to affect federal project planning."²⁷

In the House, Congressman Leggett (D-Calif.), chairman of the Fisheries and Wildlife Conservation and Environment Subcommittee of the Merchant Marine and Fisheries Committee, commissioned a General Accounting Office study of the economic impact of a closing of the Tellico Dam. When the GAO study is completed, probably by the end of June, hearings will be held on it.

Several methods of amending the operation of the Endangered Species Act have been suggested. One approach would be for Congress to legislate exemptions for individual projects. This has been done in several instances regarding the National Environmental Policy [7 ELR 10127] Act.²⁸ The idea behind this approach is that proposed exemptions often involve delicate political considerations and the responsible course, therefore, is for Congress, as the branch of government most attuned to the numerous competing interests that make up our society, to decide under what specific circumstances to deviate from broad national policy. Furthermore, it has been argued that there is a sufficient amount of flexibility in the current consultation process between the Interior Department andproject agencies to redesign projects through interagency agreement and avoid the need for statutory exemptions in most instances.The alternative to this proposal is to amend the ESA to give an agency, probably the Department of the Interior, authority to grant exemptions from the Act's requirements. Presumably, this amendment would provide guidelines to the exempting agency. The argument here is that the question of whether an exemption is warranted could best be resolved through administrative expertise. The difficulty with this proposal, however, is that it opens a loophole in the Act and leaves its size up to the agency's discretion, with the potential that litigation could erupt over the proper interpretation of whatever statutory guidelines there are to govern the agency's action.

A somewhat similar proposal advocates a blanket "grandfather clause" exemption for all projects currently under construction or authorized. A more realistic alternative to this unsophisticated approach, however, would be to exempt only those projects where all major federal decisions have taken place or where there has been an irretrievable commitment of resources prior to the point at which the effects of the project on a threatened species were or could have been discovered.

Proposals have also been discussed that the ESA should cover only "significant" endangered species, with the determination of "significance" to be made by a government-appointed scientific body. This proposal goes against the ecological axiom of the interdependent nature of all resources and the fact that the value of a resource is often not perceived until it has been lost. Listing an endangered species is initially a scientific question that can be fraught with disagreement; adding a second determination, i.e., of "significance," would only compound the difficulties.

Conclusion

In his environmental message,²⁹ President Carter spoke of wildlife as "part of the biological system that sustains us":

[o]ur Nation's public lands and waters support a rich wildlife resource that we hold in trust for all Americans, now and in the future. My Administration will assure that this public trust — for all wildlife — is adequately and effectively executed.

Both the Marine Mammal Protection Act and the Endangered Species Act are strong wildlife conservation statutes that are presently under attack. Congress and the Administration have the opportunity both to make sure that the initiative is not lost and to fine-tune the acts to take into account valid economic concerns.

1. 16 U.S.C. §§ 1361-1407, ELR 41815.

2. Hill v. Tenessee Valley Authority, 549 F.2d 1064, 7 ELR 20172 (6th Cir. 1977). See Comment, Wildlife Protection: Section 7 of the Endangered Species Act Comes of Age, 7 ELR 10049 (Mar. 1977).

3. MMPA § 101(a)(2), 16 U.S.C. § 1371(a)(2).

4. Committee for Humane Legislation, Inc. v. Richardson, 414 F. Supp. 297, 6 ELR 20500 (D.D.C. 1976), aff'd, 540 F.2d 1141, 6 ELR 20661 (D.C. Cir. 1976).

5. 41 FED. REG. 45569 (Oct. 15, 1976).

6. American Tunaboat Ass'n v. Richardson, No. 76-963-E (S.D. Cal. Oct. 21, 1976); No. 76-3369 (9th Cir. Nov. 11, 1976); No. A-398 (U.S. Nov. 15, 1976).

7. M/V Theresa Ann v. Richardson, No. 76-963-E (S.D. Cal. Jan. 21, 1977).

8. M/V Theresa Ann v. Kreps, 548 F.2d 1382, 7 ELR 20458 (9th Cir. Feb. 24, 1977).

9. 42 FED. REG. 12010-20 (MAR. 1, 1977).

10. Fund for Animals v. Kreps, No. 76-2168, 7 ELR 20456 (D.C. Cir. Mar. 8, 1977).

11. 42 FED. REG. 20484 (Apr. 20, 1977).

12. American Tunaboat Ass'n v. Kreps, No. 77-0238-S (S.D. Cal., filed Apr. 15, 1977).

13. Committee for Humane Legislation v. Kreps, No. 77-0564 (D.D.C., complaints filed Mar. 30 & Apr. 15, 1977).

14. 42 FED. REG. 22575 (May 4, 1977).

15. H.R. 6970, 95th Cong., 1st Sess. (1977).

16. House consideration and passage of H.R. 6970 is reported at 123 CONG. REC. H5194-5223 (daily ed. June 1, 1977).

17. Government figures indicate that in 1972, before passage of the MMPA, over 300,000 porpoises were killed incidental to commercial fishing and in 1976, despite a quota of 78,000 porpoises, over 100,000 were killed. Research with tuna boats using careful practices and present technology indicates that the boats could lower the kill rate to only 20,000 porpoises. Remarks of Congressmen Leggett and McCloskey, id. at H5200-02. The lack of certainty about the accuracy of these figures, however, has led to proposals that government observers should be present on all fishing trips of all boats in the United States tuna fleet.

18. It should be noted that not only did American tuna fishermen perfect the highly sophisticated system of purse-seine fishing on porpoise, but American tunaboat captains also have developed the net modifications and practices to minimize the porpoise kills.

19. MMPA § 101(a)(2), 16 U.S.C. § 1371(a)(2). Enforcement has been lax in the past because of difficulties of proof, but the Secretary of the Treasury, the official responsible for the import ban, is authorized to demand "reasonable proof" as to the effects on marine mammals of the fishing technology used be foreign tunaboats.

20. The problem of common property resources in the tuna-porpoise controversy has been perceptively explored in a paper on the tuna-porpoise controversy by Robert C. Anderson and Steven O. Andersen, economists at the Environmental Law Institute. The paper, which argues for individual porpoise quotas for boats or fishermen, was delivered at the Western Economics Association meetings in Anaheim, California on June 21, 1977. For a broad overview of theoretical bases to the problem of the "commons," see Hardin, The Tragedy of the Commons, 162 SCIENCE 1243-48 (Dec. 13, 1968).

21. 16 U.S.C. §§ 1531-1543, ELR 41825.

22. See Hill v. Tennessee Valley Authority, 549 F.2d 1064, 7 ELR 20172 (6th Cir. 1977); Sierra Club v. Froehlke, 534 F.2d 1289, 6 ELR 20448 (8th Cir. 1976); National Wildlife Fed'n v. Coleman, 529 F.2d 359, 6 ELR 20344 (5th Cir. 1976). See Comment, Implementing § 7 of the Endangered Species Act of 1973: First Notices from the Courts, 6 ELR 10120 (June 1976).

23. H.R. 4167, H.R. 4557, H.R. 5002, H.R. 5879, and H.R. 6833, 95th Cong., 1st Sess. (1977).

24. S. 363, 95th Cong., 1st Sess. (1977).The Tellico Dam decision was based on the finding that completion of the project would destroy the snail darter's critical habitat.

25. See Wyoming v. Hathaway, 525 F.2d 66, 6 ELR 20169 (10th Cir. 1975); International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 3 ELR 20133 (D.C. Cir. 1973); Appalachian Power Co. v. EPA, 477 F.2d 495, 5 ELR 20310 (4th Cir. 1973).

26. Maryland v. Train, 415 F. Supp. 116, 6 ELR 20496 (D. Md. 1976). A brief discussion on the applicability of NEPA to the listing procedures under the Endangered Species Act may be found in M. BEAN, THE EVOLUTION OF NATIONAL WILDLIFE LAW (1977).

27. The Environment — Message to Congress, 7 ELR 50057.

28. The Trans-Alaska Oil Pipeline was specifically exempted from NEPA in an amendment to § 28 of the Mineral Leasing Act of 1920, 30 U.S.C. § 185(t). See P.L. 93-153, 87 Stat. 576. When a massive infestation of blackbirds and starlings interfered with military activities at Ft. Campbell on the Kentucky-Tennessee border, Congress enacted a measure exempting the control program from NEPA, P.L. 94-207 (Feb. 4, 1976).

29. The Environment — Message to Congress, 7 ELR 50057.