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4 Ocean L. Memo 1 (1977-1978)

handle is hein.journals/ocoaslme4 and id is 1 raw text is: 40/c Vol. 4, No. 1 June 1, 1977 THE PORPOISE-TUNA CONTROVERSY For centuries seafarers have considered the appearance of porpoise an omen of good luck. In recent years, however, commercial fishermen have been especially pleased with the sighting of porpoise because it often signals the presence of yellowfin tuna. Capitalizing on this relationship and using modern purse seine gear, the domestic tuna fleet has been able to greatly increase its yields. In the process, however, hundreds of thousands of porpoise have been killed, a result which Congress sought to minimize in the stringent Marine Mammal Protection Act of 1972. During 1976 Committee for Humane Legislation, Inc., v. Richard- son, the first major lawsuit brought under that statute, was decided. The decision, for a time, threatened to stop or seriously curtail purse seining for tuna. Although subsequent events have lessened the chance of such drastic consequences, the decision remains an important interpretation of a unique statute and a vivid illustration of growing conflicts between environmental goals and commercial needs. Porpoise and Tuna Porpoise and dolphins are small-toothed whales of the order cetacea. Like all mammals, they are warm-blooded, air-breathing animals which bear and nurse live young. They are also extremely intelligent and highly social creatures. Some scientists, in fact, feel they may be man's closest intellectual counterparts on earth. For reasons that remain unknown, yellowfin tuna tend to congregate under schools of porpoise. Baitboat fishermen, employing hooks and lines, recognized this relationship and used the visible, surface-dwelling mammals to lead them to schools of tuna for decades. In 1960, however, the development of advanced purse seine gear enabled a greater use to be made of this association between fish and mammal. Under modern procedures, speedboats are used to herd porpoise into the encircling seine--a large bottomless net up to half a mile in length--while the tuna follow below. The bottom of the net is then pursed shut with a drawstring, trapping both tuna and porpoise inside. The critical point for the mammals is when the net is hauled close to the ship so the tuna can be loaded on board. During this operation, porpoise often become entangled in the netting and drown or die from shock and injuries. The extent of mortality can be enormous. In 1969 it is estimated that 529,000 died as a direct result of purse seine activities. Several techniques have been adopted in an effort to reduce this unwanted killing. Two of the most successful have been the Medina Panel, an insert of finer mesh net which allows more porpoise to slip out over the edge of the net without entangling their flippers and snouts, and backing down, a process where the ship attempts to pull the net out from under them. These pro- cedures and others have helped reduce the killing; still, it is estimated that between 80,000 to 120,000 porpoise were still killed in 1976, even though an injunction effectively prevented purse seining during the last two months of the season. The Marine Mammal Protection Act In 1972, responding to widespread public out- cry over the killing of many marine mammals such as whales, seals and porpoise, Congress enacted the Marine Mammal Protection Act (MMPA). The Act's approach is straight-forward: a moratorium of indefinite duration is placed on the taking or importation of all marine mammals. Taking is defined broadly to include not only killing but also mere harassment. There are, however, four exceptions to the moratorium: (1) taking for scientific research and public display, (2) taking by Alaska natives, (3) a general waiver provision for any marine mammal if the government makes certain determinations, and (4) taking incidental to commercial fishing. This last exception was specifically tailored to the porpoise- tuna problem, although it applies equally well to the incidental take of all marine mammals, such as sea lions or seals, during fishing operations. The commercial fishing exception, however, is not an open license. Before any such taking is allowed a permit must first be obtained, and before permits may be issued the government must formulate regulations to govern the taking. But even prior to the issuance of regulations the government must publish a statement of the population level of the particular marine mammal involved along with a statement of the effect of the taking on that species' optimum sustainable population. It is also the goal of the Act to reduce all commercial killing to insignificant levels. It was the attempted compliance with these provisions which formed the basis of the Humane Legislation lawsuit. The MMPA also provides civil and criminal penalties for violations of its provisions, restricts imports, and creates the Marine Mammal Commission, an advisory body which supervises marine mammal research. Ocean Law Mems PREPARED BY THE OCEAN RESOURCES LAW PROGRAM, UNIVERSITY OF OREGON LAW SCHOOL, EUGENE, OREGON 97403, AS AN ADVISORY SERVICE OF THE SEA GRANT COLLEGE PROGRAM.

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