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4 Ocean L. Memo 1 (1977-1978)

handle is hein.journals/ocoaslme4 and id is 1 raw text is: 


Vol. 4, No. 1

June 1, 1977


   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

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