MARINE MAMMAL LAW IN THE UNITED STATES
What laws apply to marine mammals? The
most commonly known environmental law is the Endangered
Species Act (ESA) of 1973. This act was designed
to prevent threatened and endangered species from becoming
extinct by protecting them and their habitats. Are all
dolphins and whales endangered? No, out of the 80 species
of cetaceans, only the vaquita, northern right whale,
southern right whale, western north Pacific gray whale,
bowhead whale, humpback whale, fin whale, sei whale,
sperm whale, blue whale, and the susu river dolphin are listed as
endangered. Many species are considered vulnerable. For
most species, not enough is even known to determine their
status!
Even though dolphins are not endangered, laws
exist that specifically provide for their protection.
Why? What prompted Congress to enact the Marine
Mammal Protection Act in 1972, and to expand the Animal
Welfare Act in 1979 to include marine mammals? The
American public, driven by their emotions, demandedprotection
for marine mammals. Marine mammal/human
interactions have been a common concern throughout
the history of these laws.
Widespread interest in bottlenose
dolphins began in the 1960s when the American public
was introduced to "Flipper" through
movies and television. Many people sat enthralled as
Flipper communicated with his human friends, always managing
to save the day and catch the bad guys.
During the same period, we were introduced to the fantastic
physical feats of dolphins and
other marine mammals while visiting marine mammal parks
and aquariums. Not all dolphins taken from the wild were
put in large marine mammal parks. The increasing curiosity
about dolphins gave rise to displays at small gas stations
and backyard zoos. People actually kept dolphins in plastic-sided
swimming pools, charging tourists to see them. Not surprisingly,
the animals existing in terrible conditions in the less
reputable, backyard displays did not live long.
While many people enjoyed seeing dolphins
in marine parks, those making their
living from commercial fishing did not see the smiling
gray faces in quite the same way. Dolphins stole
fish from hooks, chased away schools of mullet, ruined
expensive gear and made themselves a nuisance. It
was not unusual for people to shoot at dolphins from
boats or bridges, either for sport or in anger at
having their catch stolen. Meanwhile, in the tuna
fisheries of the Eastern Tropical Pacific Ocean,
purse seine nets routinely encircled pods of dolphins
in order to catch their tuna. Hundreds of thousands
of dolphins died each year in the tuna fishery prior
to 1972.
Up to this point, there was not much concern among
the general public about the well being of marine mammals.
The U.S. was the strongest whaling nation at one point
in whaling history, and dolphins were just small whales.
They had no commercial value, other than for marine parks.
What brought marine mammal law into the spotlight? Public
consciousness of many issues grew during the late 1960s
and early 1970s. Organizations like Greenpeace, World
Wildlife Fund, and Center for Marine Conservation were
founded with the sole purpose of inspiring people to
take responsibility for their actions and improve the
environment. These groups expressed concern for marine
mammal cruelties such as the continuation of whaling
by many countries, the clubbing of baby harp seals for
their white coats, the sport shooting of polar bears
by helicopter, and the hundreds of thousands of dolphins
dying in the tuna fishing industry. As fledgling environmental
organizations expanded, marine mammals provided them
with high profile causes that grabbed the hearts of the
public. Dolphins, the most familiar marine mammal, needed
help. What better mascot than the lovable dolphin?
Due to the efforts of such groups, and the public's
exposure to dolphins in marine parks that created awareness
and sympathy, two main laws now exist which protect marine
mammals in the United States: the Animal Welfare Act
and the Marine Mammal Protection Act. The regulations
concerning marine mammals in the Animal Welfare Act focus
on the care provided for animals in zoological parks
and aquariums. The Marine Mammal Protection Act deals
with issues concerning wild marine mammals, except for
the case of importing or exporting marine mammals into
and out of the U.S.
ANIMAL WELFARE ACT (AWA)
The AWA was first established in 1966 to apply to the
sale of dogs and cats and to ensure their humane treatment.
In 1970, the AWA was expanded to include other animals,
such as those used for research, experimentation, or
as household pets. It was not until 1979 that the care
and maintenance of marine mammals was regulated. The
AWA is administered by the Animal and Plant Health Inspection
Service (APHIS) under the U.S. Department of Agriculture.
APHIS inspectors, usually veterinarians, visit facilities
with marine mammals approximately twice a year to review
how well a facility is following the AWA regulations.
Any facility keeping a marine mammal must be licensed
or registered and regularly inspected by APHIS. Following
are some of the main requirements that APHIS inspectors
review during their inspections:
- The facility must have a sound and properly constructed
housing area suitable to the particular species of
animal that will be maintained. For example, if a facility
wanted to maintain Atlantic bottlenose dolphins, the
pool must contain salt water (as opposed to fresh water).
- The pool must meet minimum space requirements, depending
on the size, number, and species of animal that will
be maintained.
- The water in the pool must meet minimum standards
for salinity levels, pH balance, chlorine levels, copper
levels and coliform bacteria levels. All the above-mentioned
chemical levels must be tested on a daily basis. Coliform
bacteria levels must be tested on a weekly basis. Each
facility is required to maintain records of this testing
on site and be able to produce them for review by any
APHIS inspector.
- Housing and food preparation areas must be cleaned
and sanitized on a regular basis. Facilities follow
specific guidelines outlined by APHIS.
- The facility must have experienced employees with
a background in marine mammal husbandry and care.
- Animals are not to be kept in isolation, except
on a temporary basis for medical or training purposes.
Animals that are not compatible shall not be housed
together.
- Local veterinary care must be provided for the animals.
- The food fed to the animals must be wholesome, palatable,
free from contamination, and of sufficient quantity
and nutritive value to maintain the animals in good
health.
The responsibility of establishing requirements more
relevant to what we now know of marine mammal husbandry
through experience was passed to APHIS from the National
Marine Fisheries Service in 1994. The current regulations
were updated in 2005 and can be found on their web site
at www.aphis.usda.gov
The AWA addresses marine mammals in human care.
What about the safety of marine mammals in the wild?
MARINE MAMMAL PROTECTION ACT (MMPA)
The MMPA was first enacted
in 1972, making it illegal for a U.S. citizen to "harass, hunt, capture, collect
or kill” marine mammals on the high seas. This
law also applies to anyone within the 200 mile Exclusive
Economic Zone (EEZ) of the U.S., and within any other
U.S. territory (50 CRF 216.3). The MMPA regulates subsistence
kills of marine mammals for native villages, and also
regulates marine mammal interactions with fisheries,
such as tuna nets or drift nets.
The MMPA is administered by two agencies. The U.S.
Fish and Wildlife Service (FWS), under the U.S. Department
of the Interior, is responsible for walruses, polar bears,
sea otters, and manatees. NOAA Fisheries, under the U.S.
Department of Commerce, is responsible for whales, dolphins,
seals, and sea lions.
The MMPA states that it is
illegal to "take" a
marine mammal except for specific activities that require
special permits. The term “take” is defined
as “to harass, hunt, capture, collect or kill,” or
attempt to do the same to any marine mammal. Like most
laws, the verbiage can be ambiguous, leaving it subject
to public interpretation. The word “harass” can
certainly be subjective, therefore it must also be defined. “Harassment” means:
an act of pursuit, torment, or annoyance which has
the potential to injure a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral
patterns including, but not limited to, migration, breathing,
nursing, breeding, feeding, or sheltering (50 CRF 216.3).
“Feeding” was specifically addressed within
the definition of “harassment” as a result
of a 1991 court case decision (Strong vs. the U.S. Government).
The U.S. Government proved the activity of feeding wild
dolphins by Strong’s boat charters in Texas qualified
as harassment under the MMPA. Amendments came into effect
in 1994 with the MMPA reauthorization. Unfortunately,
the feeding of wild dolphins still occurs.
In the last 30 years, dolphins and whales have experienced
growing popularity. Since the Flipper series
and the Free Willy movies, the public has become
very interested in having close encounters of the dolphin
kind. Unfortunately, all this attention has not proven
to be in the best interest of the dolphins living in
the wild. Many people seek the opportunity to engage
in interactions with wild marine mammals. These interactions
are not only illegal, but are also potentially harmful
to the animals as well as to the people.
Feeding dolphins in the wild can be particularly harmful.
Studies in the last several years have indicated trends
of altered behavior in groups of wild dolphins that are
being fed. Monkey Mia, Australia, is an area where wild
dolphins gather. People eager to meet, play and touch
the dolphins have been feeding them for a number of years.
Researchers have found an increased mortality rate in
juvenile dolphins born to mothers who have become accustomed
to taking food from humans. Researchers believe that
the young dolphins did not learn to forage properly.
Additionally, scientists feel that being fed from the
beaches may distract the dolphins, which leaves the young
susceptible to predators, such as sharks. Dolphins could
be less willing to hunt for their own food because of
the ease of being fed by people.
Behavior of wild marine mammals changes when humans
feed them. Normally shy and timid animals learn to seek
out people for food. NOAA Fisheries has documented reports
of marine mammals being shot, attacked, or injured when
begging for food. In one case, a sea lion died after
being fed an explosive. There have been complaints that
animals are being fed candy, cookies, sandwiches and
chips. In Florida waters, there have been several documented
cases of wild dolphins attacking people after begging
for food and finding none offered. There is even evidence
that dolphins learn to steal from fishing lines after
learning to receive food from people.
Harmful interactions are
not only limited to feeding. Swimming with wild marine
mammals can also be dangerous to both parties. Encroaching
on areas that are dolphin resting places or rookeries
for seals and sea lions can alter normal behavior.
Rookeries are essential for seals and sea lions to
raise their pups. Scientists believe that disturbing
these areas may affect long-term, mother-pup bonds
and nursing behaviors, as well as social interactions
between animals. There have also been many reports of
swimmers being injured by “friendly” wild
dolphins, and even one confirmed death of a man in Brazil.
NOAA Fisheries officials
state that activities like whale and dolphin watching
cruises must be carried out in a manner that does not “take” or “harass” marine
mammals. Swimming with wild dolphins is not specifically
mentioned under the definition of “harassment” like
in the case of “feeding”.
The MMPA does not provide
for swimming with wild dolphins, whether commercially
or recreationally. “Watching” cruises
(in theory) are a form of passive observation that does
not disturb the animals. NOAA Fisheries considers swimming
with wild dolphins, however, to be an act of "pursuit …which
may have potential … to disturb a marine mammal
or stock in the wild causing behavioral patterns to be
disrupted” (50 CRF 216.3). Swimming with wild dolphins
and whales facilitates interactions with them. NOAA Fisheries
recommends maintaining a minimum distance of 50 yards
from any marine mammal.
NOAA Fisheries finds it is difficult to prove who
pursued whom, so swimming with wild dolphins is rarely
enforced as illegal. Wild dolphins that have never encountered
humans before should, by nature, maintain a safe distance.
If they actively pursue a person, chances are they might
have been conditioned to do so in the past, perhaps with
the persuasion of food.
NOAA FISHERIES hopes
to instill a “wildlife
ethic” and would like people to learn about marine
mammals by observing them from a distance when in their
natural habitat. For their own protection,
wild marine mammals need to remain wild and retain
their natural wariness of humans. Conditioned exposure
to humans and human activities puts marine mammals
at risk of accidental interactions with boats and fishing
practices, and ingestion of inappropriate or contaminated
food. NOAA Fisheries has received reports of dolphins
being fed things like hot dogs, Cheetos, beer, and
firecrackers. In some cases, people shoved objects
in the dolphins’ blowholes! In 1997, a minke
whale beached itself in Big Pine Key, Florida with
five bullets from three different guns! Even though
some feel that their interactions with marine mammals
are respectful, people can no longer protect whales
from these evils once they come to trust humans.
The MMPA provides limited
exceptions to the prohibition on a take of a marine
mammal. One of the exemptions to a take is a "scientific research" permit, which
allows bona-fide research to be conducted on marine mammals.
Another exemption may be a permit for the "enhancement
or recovery" of a species through reintroduction
projects, which allows the taking of threatened or endangered
marine mammal species for breeding or repopulation purposes.
Such a permit is issued in accordance with the Endangered
Species Act. Other exemptions include photography, incidental
catch in commercial fishing operations and public display.
Interestingly, a scientific research permit is required
for researchers taking photos for identification projects
regardless of whether they are getting in the water to
do so!
The MMPA also requires that any permit application
be reviewed by an agency called the Marine Mammal Commission
(MMC). The MMC is an independent watchdog agency that
reviews actions taken by the FWS and NOAA Fisheries with
regard to marine mammals. The MMC consists of three people
appointed by the President and is assisted by a Committee
of Scientific Advisors. The MMC, upon consultation with
the Committee, will provide a recommendation to the appropriate
agency on whether a permit request should be approved
or denied.
All permit applications are published in the Federal
Register, a daily publication that summarizes the application
and provides addresses so that any interested person
can obtain a copy of the permit request. A 30-day comment
period then provides the public with an opportunity to
provide input into the approval or denial of the permit
application. Upon demonstration of good cause, an interested
party may also request a hearing on the permit application.
The permit application must be approved or denied within
30 days of the end of the hearing, or the end of the
public comment period.
Through this permit process, the MMPA provides for
collections of marine mammals from the wild. Quotas are
set on how many wild animals may be collected from a
certain area, dependent upon the population size and
sustainability of the species. Atlantic bottlenose dolphins,
however, have not been collected since 1989, because
of success in the captive-breeding program.
The MMPA recognizes the value of marine mammals
and the important role zoological parks and aquariums
play in educating the public. While APHIS,
under the AWA, retains the primary regulatory authority
over the actual standards and conditions under which
marine mammals may be kept, the MMPA does require that
any facility maintaining marine mammals meet three
conditions: 1) the facility must be open to the public
on a regular basis; 2) the facility must offer an educational
program which meets professionally recognized standards;
and, 3) the facility must be licensed by APHIS.
Under the authority of the
MMPA, NOAA Fisheries operates the National Marine Mammal
Tissue Bank and Stranding Network Program, which responds
to strandings and unusual mortality events of those
marine mammals under their jurisdiction. Zoological
parks and aquariums comprise a large part of the stranding
network. Similarly, the FWS responds to injured animals
under their jurisdiction, such as the endangered Florida
manatee. In the manatee’s
case, the FWS entrusts much of that responsibility to
Florida’s Department of Environmental Protection.
NOAA Fisheries and the FWS do have a limited role in
the operation of zoological parks and aquariums. NOAA
Fisheries is also the custodian of the Marine Mammal
Inventory of dolphins in human care. They must be notified
of a transport among facilities. NOAA Fisheries governs
all import and export of marine mammals to and from the
U.S. and all return to wild projects which, incidentally,
require permits.
To free or not to free, that is the question. In
order to be issued a permit to return a dolphin back
into the wild after it has lived in human care, one must
apply for a scientific research permit, which means that
the release project must be conducted as bona-fide research.
In a scientific based project, the benefit would be for
the population or species and not for an individual animal.
According to conservation science, reintroduction is
a technique using wild animals or animals born at a facility
to restock wild populations in natural habitats. A review
of reintroduction projects, using a variety of animal
species, shows an average success rate of 11%. The risk
of reintroduced animal(s) not surviving is too great
at this point. Sometimes we have no choice but to take
that risk, because it represents a final hope, like in
the case of endangered species. Bottlenose dolphins and
killer whales are not endangered, however, so scientists
must look at each individual case for the likelihood
of survival and for the possible threats to wild populations.
Some scientists point out that if the success rates of
reintroduction could be increased by perfecting the science
with non-endangered animals, then it would be valid scientific
research.
Many charismatic speakers try to convince the general
public that marine mammals, dolphins in particular, are
better off dead than in human care. One aspect of caring
about marine mammals is being concerned that they have
a high quality of life, which can be provided by marine
mammal facilities. Forcing them to struggle for survival
in the wild would not provide a high quality of life,
and may even end up in death. Also, an introduced marine
mammal may place the wild populations it has contact
with at risk.
Many issues must be addressed when considering candidates
for release back into the wild:
- Can they be returned to their native home range?
This aspect is important to the genetics of populations
and species.
- How old were they when they were captured, or were
they born in human care? In other words, are they capable
of surviving in the wild? Did they learn the valuable
lessons of how to communicate with their species, hunt
for food, migrate, evade predators, etc.?
- How accustomed are they to people? Will that cause
problems to their own survival in the face of dangerous
interaction? Will they put the safety of people at
risk?
- Have they developed the proper immune system for
wild survival? Wild dolphins may have immunities to
diseases that dolphins in human care do not, and dolphins
in human care could also expose wild dolphins to diseases
that they have never encountered.
NOAA Fisheries is the agency issuing permits for such
a project. They require two simply- stated but crucial
contingencies. The marine mammal must not pose a threat
to wild populations, and it must be healthy and likely
to survive on its own in the wild.
Return-to-wild projects must also provide a proven
monitoring system to track the animals and a plan to
rescue the animals if they are not adapting to life in
the wild. Dr. Randall Wells, a well-respected marine
mammal scientist, carried out the only documented reintroduction
project involving dolphins that is deemed successful.
Even he has stated that he would not attempt to do the
same thing again because of the stress it causes the
dolphins. All other claims by activists are simply claims.
Many times, once the dolphin or whale was set free, it
was considered a success by activists despite little
or no follow up.
In January 1998, an extremist
named Ric O'Barry, and others involved in a "return-to-the-wild" project
were federally charged with violating the MMPA. They
were charged with harassing and illegally transporting
two dolphins, Buck and Luther. Ric O'Barry dumped these
two dolphins into a wild pod six miles off the coast
of Key West on May 23, 1996 after they’d spent
a year in a "re-conditioning" program at Sugarloaf
Dolphin Sanctuary. Neither Buck nor Luther was from Florida
waters. NOAA Fisheries arranged for both dolphins to
be rescued out of concern for their inability to survive
in the wild alone. Luther was sighted the day after his
release approaching boats and jet skis. He was rescued
when he followed a group of jet skiers into a remote
area. Buck disappeared for two weeks after being abandoned
by Ric O'Barry. Buck, close to death, was rescued by
the federal government and DRC personnel. He had traveled
over 100 miles without Luther or other dolphins. He had
lost a third of his body-weight, was severely dehydrated
and was breaking down his fat and muscle tissues for
energy. Some of the most prominent marine mammal veterinarians
examined Buck and diagnosed his condition as typical
of terminally ill, stranded cetaceans. He did not have
the knowledge or the tools he needed to survive.
Buck was in critical condition when he arrived at DRC.
Due to our dedication and Buck's spirit, he gained weight
back and felt better. We enjoyed working with Buck and
his boyish enthusiasm for three years, but he never fully
recovered from his near-death experience, and having
been so emaciated, dehydrated and stressed. He experienced
high points and low points in his recovery until he let
go peacefully on June 20th of 1999. Buck leaves a legacy
of truth to another possible ending to the Free Willy story,
and we will continue to honor his life in sharing his
truth.
In June 1999, Judge Peter
A. Fitzpatrick, a U.S. Administrative Law Judge, fined
all that were involved in this case – Ric
O'Barry, Lloyd Good III, Sugarloaf Dolphin Sanctuary
and the Dolphin Project Inc. – civil penalties
of $40,000 for illegally "taking" by harassment
and illegally transporting Buck and Luther. The Sugarloaf
Dolphin Sanctuary was also fined $19,500 for failing
to notify NOAA Fisheries prior to transporting Buck and
Luther. The Honorable Fitzpatrick chose to fine the maximum
penalties provided by law, because he wanted to set a
precedent to prevent irresponsible releases in the future.
In issues of ethics involving marine mammal law, the
most important aspect to remember is to use our emotions
to drive us into action, but to also use our critical
minds to guide us. Do not take anything stated or written
at face value. Look behind the voices and the words.
Always check references of statistics given and statements
quoted making sure that they are being interpreted correctly
and that they are current. The best ambassador for marine
mammals and their environment is a motivated and informed
one!
References
“An Alliance for Conservation:
Understanding the MMPA.” 1993. Aquaticus, 24(1),
Journal of the Shedd Aquarium, Chicago, IL.
Marine Mammal Commission. 1995.
Annual Report to Congress, Calendar Year 1994, Marine
Mammal Commission, 1825 Connecticut Ave. NW, Suite 512,
Washington, DC 20009. (contains information on the dangers
of interacting with and feeding wild dolphins)
Howard, Carol J. 1995. Dolphin Chronicles.
Bantam Books, New York, NY. (contains an interpretation
of the release project conducted by Dr. Randall Wells)
Twiss, J. R. and R. R. Reeves (eds.). 1999. Conservation
and Management of Marine Mammals. Washington D. C.: Smithsonian
Institution Press.
 Copyright © 2007 Dolphin Research Center
Information Can Be Used with Proper Citing
Dolphin Research Center, 58901 Overseas Highway, Grassy Key, FL 33050-6019
305-289-1121 www.dolphins.org
|
