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Full text of "Marine Mammal Protection Act reauthorization : hearing before the Subcommittee on Environment and Natural Resources of the Committee on Merchant Marine and Fisheries, House of Representatives, One Hundred Third Congress, first session, on governing interactions between marine mammals and commercial fishing operations, April 20, 1993-"

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THE MARINE MAMMAL PROTECTION ACT 

PART III 

Y 4. H 53:103-89 .' 

II. hrl.. D,. R ,1 ProUc HEAEING 

BEFORE THE 

SUBCOMMITTEE ON ENVIRONMENT 
AND NATURAL RESOURCES 

OF THE 

COMMITTEE ON 

MERCHANT MARINE AND FISHERIES 

HOUSE OP REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

FIRST SESSION 
ON 

THE CAPTURE AND PUBLIC DISPLAY OF MARINE 
MAMMALS AND THE DIFFICULTIES FACING MARINE 
BIOLOGISTS UNDER THE ACT'S CURRENT PROVI- 
SIONS 



FEBRUARY 10, 1994 



Serial No. 103-89 




Printed for the use of the Committee on Merchant Marine and Fisheries 

JUL 2 J 1994 

U.S. GOVERNMENT PRINTING OFFICE 
79-705 CC WASHINGTON : 1994 

For sale by the U.S. Government Printing Office 
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 
ISBN 0-16-044382-2 



JO 3 

THE MARINE MAMMAL PROTECTION ACT 

PART III 

Y 4. M 53: 103-89 .' 

ih. B . , , HEAEING 

The Oirine Oannal Protec 

BEFORE THE 

SUBCOMMITTEE ON ENVIRONMENT 
AND NATURAL RESOURCES 

OF THE 

COMMITTEE ON 

MERCHANT MARINE AND FISHERIES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

FIRST SESSION 

ON 

THE CAPTURE AND PUBLIC DISPLAY OF MARINE 
MAMMALS AND THE DIFFICULTIES FACING MARINE 
BIOLOGISTS UNDER THE ACT'S CURRENT PROVI- 
SIONS 



FEBRUARY 10, 1994 



Serial No. 103-89 



Printed for the use of the Committee on Merchant Marine and Fisheries 




JUL 2 J 1994 

U.S. GOVERNMENT PRINTING OFFICE 
79-705 CC WASHINGTON : 1994 

For sale by the U.S. Government Printing Office 
Superintendent of Documents, Congressional Sales Office, Washington. DC 20402 
ISBN 0-16-044382-2 



COMMITTEE ON MERCHANT MARINE AND FISHERIES 
GERRY E. STUDDS, Massachusetts, Chairman 



WILLIAM J. HUGHES, New Jersey 

EARL HUTTO, Florida 

W.J. (BILLY) TAUZIN, Louisiana 

WILLIAM O. LIPINSKI, Illinois 

SOLOMON P. ORTIZ, Texas 

THOMAS J. MANTON, New York 

OWEN B. PICKETT, Virginia 

GEORGE J. HOCHBRUECKNER, New York 

FRANK PALLONE, Jr., New Jersey 

GREG LAUGHLIN, Texas 

JOLENE UNSOELD, Washington 

GENE TAYLOR, Mississippi 

JACK REED, Rhode Island 

H. MARTIN LANCASTER, North Carolina 

THOMAS H. ANDREWS, Maine 

ELIZABETH FURSE, Oregon 

LYNN SCHENK, California 

GENE GREEN, Texas 

ALCEE L. HASTINGS, Florida 

DAN HAMBURG, California 

BLANCHE M. LAMBERT, Arkansas 

ANNA G. ESHOO, California 

THOMAS J. BARLOW, III, Kentucky 

BART STUPAK, Michigan 

BENNIE G. THOMPSON, Mississippi 

MARIA CANTWELL, Washington 

PETER DEUTSCH, Florida 

GARY L. ACKERMAN, New York 



JACK FIELDS, Texas 

DON YOUNG, Alaska 

HERBERT H. BATEMAN, Virginia 

JIM SAXTON, New Jersey 

HOWARD COBLE, North Carolina 

CURT WELDON, Pennsylvania 

JAMES M. INHOFE, Oklahoma 

ARTHUR RAVENEL, Jr., South Carolina 

WAYNE T. GILCHREST, Maryland 

RANDY "DUKE" CUNNINGHAM, California 

JACK KINGSTON, Georgia 

TILLIE K. FOWLER, Florida 

MICHAEL N. CASTLE, Delaware 

PETER T. KING, New York 

LINCOLN DIAZ-BALART, Florida 

RICHARD W. POMBO, California 

HELEN DELICH BENTLEY, Maryland 

CHARLES H. TAYLOR, North Carolina 

PETER G. TORKILDSEN, Massachusetts 



Jeffrey R. Pike, Chief of Staff 

Mary J. Fusco Kitsos, Chief Clerk 

Harry F. Burroughs, Minority Staff Director 

Cynthia M. Wilkinson, Minority Chief Counsel 



Subcommittee on Environment and Natural Resources 

GERRY E. STUDDS, Massachusetts, Chairman 



GEORGE J. HOCHBRUECKNER, New York 

FRANK PALLONE, Jr., New Jersey 

GREG LAUGHLIN, Texas 

JOLENE UNSOELD, Washington 

JACK REED, Rhode Island 

ELIZABETH FURSE, Oregon 

DAN HAMBURG, California 

BLANCHE M. LAMBERT, Arkansas 

ANNA G. ESHOO, California 

EARL HUTTO, Florida 

W.J. (BILLY) TAUZIN, Louisiana 

SOLOMON P. ORTIZ, Texas 

BENNIE G. THOMPSON, Mississippi 

Daniel Ashe, Staff Director 
Karen Steuer, Deputy Staff Director 



JIM SAXTON, New Jersey 
DON YOUNG, Alaska 
CURT WELDON, Pennsylvania 
ARTHUR RAVENEL, Jr., South Carolina 
WAYNE T. GILCHREST, Maryland 
RANDY "DUKE" CUNNINGHAM, California 
MICHAEL N. CASTLE, Delaware 
CHARLES H. TAYLOR, North Carolina 
JACK FIELDS, Texas (Ex Officio) 



(II) 



CONTENTS 



Page 

Hearing held February 10, 1994 1 

Statement of: 

Beattie, Ms. Mollie, Director, U.S. Fish and Wildlife Service, Department 

of the Interior 14 

Prepared statement 61 

Bentley, Hon. Helen Delich, a U.S. Representative from Maryland 3 

Bilirakis, Hon. Michael, a U.S. Representative from Florida 7 

Cunningham, Hon. Randy "Duke", a U.S. Representative from California 32 
Fields, Hon. Jack, a U.S. Representative from Texas, and Ranking Minor- 
ity Member, Committee on Merchant Marine and Fisheries 3 

Foster, Dr. Nancy, Deputy Assistant Administrator for Fisheries, NOAA, 

Department of Commerce 13 

Prepared statement 40 

Gilchrest, Hon. Wayne, a U.S. Representative from Maryland 36 

Goss, Hon. Porter, a U.S. Representative from Florida 9 

Prepared statement 11 

Grandy, John, Vice President for Wildlife and Habitat Protection, Hu- 
mane Society of the United States 20 

Prepared statement 104 

Jenkins, Robert, American Zoo and Aquarium Association, Alliance for 

Marine Mammal Parties and Aquariums 18 

Prepared statement 89 

Lipinski, Hon. William O., a U.S. Representative from Illinois 8 

Ortiz, Hon. Solomon P., a U.S. Representative from Texas, and Chair- 
man, Subcommittee on Oceanography, Gulf of Mexico, and the Outer 

Continental Shelf 5 

Pombo, Hon. Richard W., a U.S. Representative from California 4 

Pungowiyi, Caleb, President, Inuit Circumpolar Conference 24 

Prepared statement 117 

Reynolds, Dr. John E., Chairman, Marine Mammal Commission 16 

Prepared statement 72 

Saxton, Hon. Jim, a U.S. Representative from New Jersey, and Ranking 
Minority Member, Subcommittee on Environment and Natural Re- 
sources 2 

Schenk, Hon. Lynn, a U.S. Representative from California 6 

Studds, Hon. Gerry E., a U.S. Representative from Massachusetts, and 

Chairman, Subcommittee on Environment and Natural Resources 1 

Tyack, Dr. Peter, Research associate, Woods Hole Oceanographic Institu- 
tion 22 

Prepared statement 112 

Young, Hon. Don, a U.S. Representative from Alaska, and Ranking Mi- 
nority Member, Subcommittee on Fisheries Management 5 

Additional material supplied: 

Baur, Donald C. (Prepared for the Marine Mammal Commission): Ex- 
cerpts from "Reconciling the Legal Mechanisms to Protect and Manage 
Polar Bears Under United States Laws and the Agreement for the 

Conservation of Polar Bears" 156 

Dewey, Robert L. (Defenders of Wildlife and the Wilderness Society): 
Statement on the need for Congress to amend the MMPA to provide 
the U.S. Fish and Wildlife Service with affirmative authority to protect 

polar bear habitat 148 

Dolphin Quest, Hawaii: Testimony on the reauthorization of the MMPA .. 140 

(ill) 



IV 

Page 

Additional material supplied — Continued 

Foster, Dr. Nancy (NOAA): Answers to questions submitted by the Sub- 
committee following the hearing 59 

Hodges, John A. (Marine Mammal Coalition): Position of the Coalition 
concerning reauthorization of the MMPA 131 

Merculieff, Larry (on behalf of the Bering Sea Coalition and the City 
of St. Paul, Alaska): Testimony on the reauthorization of the MMPA 169 



MARINE MAMMAL PROTECTION ACT 
PART III 



THURSDAY, FEBRUARY 10, 1994 

House of Representatives, Subcommittee on Envi- 
ronmental and Natural Resources, Committee on 
Merchant Marine and Fisheries, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:30, in room 1334, 
Longworth House Office Building, Hon. Gerry E. Studds [chairman 
of the Subcommittee] presiding. 

Present: Representatives Studds, Hochbrueckner, Pallone, 
Gilchrest, Reed, Hamburg, Eshoo, Ortiz, Saxton, Cunningham, and 
Young. 

Staff Present: Karen Steuer, Deputy Staff Director; Tod Preston, 
Professional Staff; Marvadell Zeeb, Staff Assistant; Harry Bur- 
roughs, Minority Staff Director; Cynthia Wilkinson, Minority Chief 
Counsel; Margherita Woods, Minority Staff Assistant; and Rod 
Moore, Minority Professional Staff. 

STATEMENT OF HON. GERRY E. STUDDS, A U.S. REPRESENTA- 
TIVE FROM MASSACHUSETTS, AND CHAIRMAN, SUBCOMMIT- 
TEE ON ENVIRONMENT AND NATURAL RESOURCES 

Mr. Studds. The Subcommittee will come to order. I think we 
should announce the reappointment to the 104th Congress of the 
ranking member of this Committee, the gentleman from Texas. Un- 
fortunately, the other 49 States have elections and — we got another 
one? Also? No. 

This morning, although the issues we are going to cover have not 
been dealt with at our hearings to date on the reauthorization of 
the Marine Mammal Protection Act, one of them has been dis- 
cussed in just about every household that has seen "Free Willy": 
the capture and public display of marine mammals. In fact, it is 
this issue that has brought one of our colleagues from Florida here 
to testify this morning. We were originally scheduled to have two 
of our colleagues from Florida with us; however, Mr. Bilirakis has 
called with his apologies, he is ill and unable to attend, but we will 
indeed enter his testimony into the record. I would like to point out 
to our colleague from Alaska how impressed we are that we are 
hearing from two members from his side of the aisle on the need 
for more consideration for Flipper. 

And I also point out that the gentleman, as we will shortly learn, 
I fear, is armed beyond usual this morning. In the traditional 
hands-on style of this Committee's hearings, we had intended to 
bring dolphins into the hearing room this morning as we discussed 

(l) 



this issue, but NMFS denied us a permit, mumbling something 
about the need to be an educational institution. 

We will also hear from a representative from the research com- 
munity, in fact from my own constituency this morning, about the 
difficulties facing marine mammal biologists under the Act's cur- 
rent provisions; provisions which, I understand, make it more dif- 
ficult to photograph a whale than it is to kill one in one's net. By 
the way, Dr. T^ack, I am not sure it was wise to point out that a 
research institution in my district consistently broke the law for 
two years while they rescued whales. What the heck. 

I am also pleased that we have with us a representative from the 
Alaska native community to discuss how to improve the relation- 
ship between the agencies and the natives whose lives depend on 
subsistence uses of marine mammals. 

It should be an interesting and productive morning and I am de- 
lighted to yield to the ranking member, the gentleman from New 
Jersey. 

Mr. Young. Mr. Chairman, I 

Mr. Studds. Rank is relative. I yield it to the ranking member. 

STATEMENT OF HON. JIM SAXTON, A U.S. REPRESENTATIVE 
FROM NEW JERSEY, AND RANKING MINORITY MEMBER, 
SUBCOMMITTEE ON ENVIRONMENT AND NATURAL RE- 
SOURCES 

Mr. Saxton. Mr. Chairman, hopefully this hearing can begin to 
end the controversy surrounding the Marine Mammal Protection 
Act. We are working closely in a bipartisan fashion to reauthorize 
the MMPA, hopefully, by the April first deadline. 

The issues we face today are contentious. Many on the panel 
have concerns about whether or not agency overreaching is going 
to take place, but my concerns stem from the proposed permit regu- 
lations that the National Marine Fisheries Service had published 
in October. 

Public policy changes of this magnitude require congressional 
oversight, and that is one reason we are here. I am pleased the 
Subcommittee will take some time today to examine the NMFS 
proposed regulations and address these concerns. 

My concerns center on NMFS's intention to require permit hold- 
ers to post a $10,000 surety bond or to make other arrangements 
for each and every animal in their care. While the reason for the 
bond is not entirely unreasonable, to offset costs for caring for ani- 
mals should the facility cease functioning, I am not convinced that 
NMFS has the statutory authority under the MMPA to require 
such a bond. 

In addition, under the proposed regulations, it seems that NMFS 
will have to review extensive and intricate permit applications cov- 
ering various obligations. These include facility permits, amend- 
ments to facility permits, and mandatory 5-year renewals of such 
permits. With all the agency's increased responsibility, it will re- 
quire an increase in manpower and, in my view, some additional 
money. And my question is where will that come from? I am not 
persuaded that increased administrative expenditures are the best 
use of our limited marine mammal protection dollars. 



Finally and most troubling, the proposed regulations would also 
set a precedent for industry to pay for government's writing of en- 
vironmental assessments and environmental impact statements. 
Such policy would have ramifications beyond MMPA and should be 
carefully considered before being implemented. 

So I look forward, Mr. Chairman, to the many comments and 
suggestions from the witnesses. Hopefully, we can work together on 
a final amicable agreement to these and other issues we will surely 
address during this hearing. 

May I ask unanimous consent that the statements of Mr. Fields 
and Ms. Bentley be placed in the record, Mr. Chairman, before I 
yield to the rank member. That is my prerogative. 

[Statement of Mr. Fields follows:] 

Statement of Hon. Jack Fields, a U.S. Representative from Texas, and 
Ranking Minority Member, Committee on Merchant Marine and Fisheries 

Mr. Chairman, the Marine Mammal Protection Act (MMPA) was enacted in 1972 
for the purpose of ensuring that marine mammals are maintained at, or in some 
cases restored to, healthy population levels. 

The MMPA governs a variety of subjects, including public display, scientific re- 
search, subsistence use of marine mammals, and the incidental take of marine 
mammals during commercial fishing operations. The hearing this morning will focus 
on the first three issues. 

The provisions related to commercial fishing were the subject of two hearings be- 
fore the Subcommittee last year. Those hearings were time-sensitive because a 5- 
year exemption from the prohibition on taking marine mammals, which Congress 
had afforded to the commercial fishing industry, was set to expire. The industry 
faced a serious crisis back in 1988, and Congress had to find a way to keep them 
in business while still maintaining the goals of the MMPA. During this 5-year pe- 
riod, the National Marine Fisheries Service collected data on interactions between 
commercial fisheries and marine mammals, determined the status of marine mam- 
mal stocks, and tried to develop a permanent regime governing this specific inter- 
action. 

With the adoption of H.R. 3049 last year, we extended the exemption to April 1, 
1994, to give the fishing industry and the environmental community time to work 
out their differences. While this issue has proven to be rather difficult, I understand 
that both groups are working diligently to resolve the issues in contention. 

Today's nearing will concentrate on other important aspects of the MMPA — public 
display, scientific research, importation of marine mammal products, and subsist- 
ence use. We will have the opportunity to examine whether the administrative proc- 
ess can be streamlined to better serve the public display industry without harming 
marine mammals. We will explore whether existing cooperative management agree- 
ments have been successful and whether new agreements should be encouraged and 
funded. We will look at whether the current permit program administered by the 
National Marine Fisheries Service is an obstacle to research as some scientists have 
alleged. We will also analyze the Administration's policies governing the take and 
display of non-depleted marine mammals for educational or conservation programs. 

Finally, Mr. Chairman, the largest group of consumptive users of marine mam- 
mals in the United States are Congressman Young's constituents. Their use of ma- 
rine mammals for food, clothing, shelter, handicrafts, and cultural purposes pre- 
dates the European settlement of Alaska and continues to this day. I hope that we 
will listen carefully to the concerns and needs presented by the Alaskan natives 
today, and I pledge my support to the Congressman for all Alaska to work with the 
Chairman in trying to resolve this issue. 

With that, Mr. Chairman, I welcome our witnesses and look forward to the testi- 
mony they will present. Thank you. 

[Statement of Ms. Bentley follows:] 

Statement of Hon. Helen Delich Bentley, a U.S. Representative from 

Maryland 

Good morning, Mr. Chairman. On behalf of the National Aquarium in Baltimore 
and other marine mammal parks and aquariums, I would like to thank you for hold- 



ing this important hearing today on the reauthorization of the Marine Mammal Pro- 
tection Act. Because the Marine Mammal Protection Act continues to have such a 
positive impact on the future of marine mammal education, scientific research, and 
conservation programs, I wanted to make sure my Committee colleagues were aware 
of a looming thunderstorm that is about to strike the fundamental purposes and 
policies of the Marine Mammal Protection Act. 

The thunderstorm, of which I speak, is in the form of proposed permit regulations 
from the National Marine Fisheries Service (NMFS). 

Specifically, NMFS would include captive marine mammals in the definition of 
the term "take". I believe that "take" should be defined as covering only activities 
"in the wild". Otherwise, NMFS will have jurisdiction from "the wild" to well beyond 
the fence. This action would have serious consequences to the zoological commu- 
nity's education, scientific and conservation programs in the form of additional bu- 
reaucracy which is entirely unnecessary. Further, the current language would em- 
power NMFS to set the standards for the care and maintenance of marine mammals 
within their jurisdiction. This proposed action is contrary to the Clinton Administra- 
tion's policy to streamline government agencies. 

An example: NMFS would require a facility to first apply for a permit to authorize 
a specific activity; then prior to the activity, the facility would have to get authoriza- 
tion. Finally, one week from the activity, the facility would have to inform NMFS 
where, when, and how the activity will be performed — even though NMFS has al- 
ready been informed of the activity from the original permit application. Not only 
does this seem to be a redundancy, but an expensive redundancy at that. 

Mr. Chairman, I am very proud of the Marine Mammal Protection Act. It has 
given our country's zoos and aquariums the foundation from which to secure the fu- 
ture of marine mammal research. They have developed productive breeding pro- 
grams of endangered and threatened species, created education programs used by 
universities coast to coast, and have assisted in returning hundreds of animals back 
to the wild. 

I look forward to hearing the views of our distinguished panel on this potential 
crisis. I believe we must reauthorize the Marine Mammal Protection Act without im- 
peding the zoological community's future. Thank you, Mr. Chairman. 

[Statement of Mr. Pombo follows]: 

Statement of Hon. Richard Pombo, a U.S. Representative from California 

Mr. Chairman, thank you for holding today's hearing on the reauthorization of the 
Marine Mammal Protection Act (MMPA). In 1972, Congress took steps to address 
the declining marine mammal population by enacting this important legislation. 

Today I want to express my concerns about sections of this Act which deal with 
the public display of marine mammals. It is quite clear, the public display commu- 
nity has been able to educate young and old — people around the world — to the im- 
portance of marine mammals in our ecosystem. 

Every year, millions of people visit marine life parks, aquariums, and zoos to 
learn more about marine mammals. Some of those millions of individuals visit Ma- 
rine World Africa USA. Located in Vallejo, California, close to my congressional dis- 
trict, many of my constituents visit the park for a day of excitement and education. 
At Marine World individuals have the ability to experience marine mammals in an 
up-close environment. Individuals walk away knowing a little more about marine 
mammals and the environment. This is confirmed by a recent Ropers poll that re- 
ported that 86% of visitors to zoos and aquariums are more likely to be committed 
to environmental conservation as a result of their visit. 

The education programs in which Marine World has developed provides elemen- 
tary schools, high schools, and universities an in-depth understanding into all as- 
pects of marine mammals. As you may be aware, the commitment to marine mam- 
mals does not end in the classroom. Members of the Alliance of Marine Mammal 
Parks and Aquariums have spent over $20 million in the past 5 years on research 
that helps stranded animals as well as wild populations. 

As we move through the process of the reauthorization of this bill, Mr. Chairman, 
I hope that the Merchant Marine and Fisheries Committee can work in a bipartisan 
manner to reinforce the original intent of this Act and to acknowledge the work the 
public display community has done over the last 20 years. 

Mr. Studds. I am sure the ranking members of the majority side 
will be pleased to allow us to hear from the distinguished member 
from Alaska. 



STATEMENT OF HON. DON YOUNG, A U.S. REPRESENTATIVE 
FROM ALASKA, AND RANKING MINORITY MEMBER, SUB- 
COMMITTEE ON FISHERIES MANAGEMENT 

Mr. Young. I thank the Chairman and the ranking member for 
their kindness for recognizing me. Mr. Chairman, I know this hear- 
ing is not about fisheries interaction with marine mammals, so I 
will keep my remarks brief, I know that makes everybody happy. 
But one of the topics of concern to me today is the effect of the Act 
on native Alaskans who take marine mammals for subsistence. Our 
staffs have been working on amendments that will solve some of 
the problems identified by the native community. However, we 
must all recognize the bottom line, which is that the right of Alas- 
kan natives to harvest marine mammals for subsistence should not 
be taken away by Congress, or taken away by any agency. 

The other issue we will address today is that of public display 
of marine mammals. My good friend just talked about that. I 
thought we had resolved this problem in 1988. Unfortunately, the 
National Marine Fisheries Services has taken 5 years to produce 
two hundred pages of regulations that only make the problem 
worse. The zoos and aquariums of this country perform a valuable 
role in educating the public on marine mammal problems. They as- 
sist stranded marine mammals and nurse them back to health. 
They work on protecting endangered species. 

I want to make clear that I intend to support our nation's zoos 
and aquariums for letting them continue the good work they have 
done. 

Mr. Chairman, I work very closely with the groups that display 
these mammals, especially from Alaska who are after the orca 
whale. I finally won that permit and now after they decided it was 
unwise to try to capture wild animals, they proceeded to have these 
animals give birth to new ones within their aquariums. Along 
comes NMFS, these aren't yours, these are ours. This is govern- 
ment stupidity at the highest degree. And I hope we can look at 
these regulations and try to express our dissatisfaction on what 
they are trying to do with units that do protect the marine mam- 
mals and provide for the public on an educational basis. This is a 
classic example that the government cannot do what is correct, I 
don't think at any one time. Thank you, Mr. Chairman. 

Mr. Studds. Are there other members who are compelled to 
make an opening statement 

Mr. Ortiz. I would just like to include my statement for the 
record, Mr. Chairman. 

Mr. Studds. Without objection. Are there others? 

[Statement of Mr. Ortiz follows:] 

Statement of Hon. Solomon P. Ortiz, a U.S. Representative from Texas, and 
Chairman, Subcommittee on Oceanography, Gulf of Mexico, and the Outer 
Continental Shelf 

I want to thank the Chairman for holding this hearing today to examine how the 
Marine Mammal Protection Act can be reauthorized in a manner that can best en- 
sure the welfare and safety of marine mammals within a regulatory framework that 
properly represents the legitimate interests of the public display and scientific com- 
munities. 

Anyone who has had the opportunity to observe a dolphin, sea lion, or manatee 
in the wild or at a zoo or aquatic park can recognize both their ecological and aes- 
thetic value. Like many of the other members of this Committee, I believe that we 



need to do what is necessary to ensure the health and preservation of our marine 
mammal species for future generations. 

The zoological and marine mammal public display community plays an important 
part in this effort by demonstrating the value of marine mammal species and visibly 
displaying the close relationship between human behavior and the health of these 
species. As such, I hope that in the process of drafting a reauthorization of the 
MMPA, this Committee will support amendments to the Act that will allow respon- 
sible institutions to conduct their important display, education, and conservation 
programs within a sensible and practical regulatory scheme that avoids unnecessary 
duplicative and overlapping requirements. It is vital that we ensure the proper care 
and treatment of marine mammals; however, I hope we can do so in a way that 
will promote the dissemination to the public of information about the value of these 
species, rather than deter it. 

I look forward to hearing from the witnesses today, and, likewise, I look forward 
to working with the Chairman and the ranking member, Representative Saxton, on 
the large number of issues that need to be resolved as we work towards the reau- 
thorization of the MMPA. 

[Statement of Ms. Schenk follows]: 

Statement of Hon. Lynn Schenk, a U.S. Representative from California 

Thank you, Mr. Chairman. As a member whose district is home to a Sea World 
facility, I am very interested in the issues raised as this Subcommittee considers 
the reauthorization of the Marine Mammal Protection Act (MMPA), particularly 
those aspects of the reauthorization affecting zoological institutions. I appreciate 
being able to submit this statement for the hearing record. 

The MMPA was enacted in 1972 to conserve declining marine mammal popu- 
lations in the wild from human threats to their continued existence. The Act safe- 
guards marine mammals by managing human activities affecting them and their 
natural habitat. Sea World and other members of the Alliance of Marine Mammal 
Parks and Aquariums (Alliance) and of the American Association of Zoological Parks 
and Aquariums (AZA) continually work toward marine mammal protection in a 
number of ways including education, research, rescue and rehabilitation, and care 
and maintenance. The MMPA specifically recognizes the important role that the zo- 
ological community plays in educating the public about the importance of marine 
mammal protection and conservation. Congress should reaffirm this importance as 
it reauthorizes the MMPA. 

The benefits derived from the zoological community's education, research, rescue 
and rehabilitation, and care and maintenance efforts help to protect marine mam- 
mals and their habitat at no expense to the Federal Government. The great service 
that the zoological community provides in these areas should be recognized and 
should not be discouraged by unnecessary regulation. 

We should take advantage of this opportunity to clarify various issues that have 
been raised over the past 5 years. Such issues generally address the proper roles 
that the National Marine Fisheries Service and the Department of Agriculture's 
Animal and Plant Health Inspection Service (APHIS) should play in regulating the 
various activities affecting marine mammals. The MMPA and its legislative history 
indicate that Congress intended the statute to only apply to marine mammals in 
the wild. The National Marine Fisheries Service and the U.S. Fish and Wildlife 
Service are responsible for enforcing the Act. The Animal Welfare Act (AW A), en- 
forced by APHIS, regulates the care and maintenance of marine mammals in zoolog- 
ical facilities. Through the years, much confusion has developed over what role each 
agency should play. This confusion has led to duplication of effort, conflicting stand- 
ards, and law suits. Resources are consequently diverted from protecting marine 
mammals to litigation and other diversionary activities. 

The MMPA should be clarified to further strengthen Congress' original intent that 
NMFS has and should maintain the authority to issue permits for 'takes" from the 
wild and for the importation of marine mammals or marine mammal parts from a 
foreign country. The term "take" should be explicitly clarified to include only activi- 
ties in the wild or affecting a marine mammal's natural habitat. 

The law should also be revised to make it clear that once a permit is issued, the 
marine mammal and its progeny can be lawfully owned, possessed, transported, 
sold, or purchased without the need for any additional permit, provided the Sec- 
retary of Commerce is notified in advance of any such transaction and that the 
transaction is for a purpose authorized by the MMPA. 

NMFS should maintain its authority to enforce criminal and civil penalties 
against anyone possessing a marine mammal or marine mammal part in violation 



of the Act. In addition, NMFS should continue its current practice of collecting an- 
nual reports from anyone in possession of a marine mammal, its progeny, or a ma- 
rine mammal part. This would enable the Secretary to keep track of the status of 
the animal or part and to enforce the Act. 

I believe that the NMFS rule proposed last October represents a major public pol- 
icy shift from the current scheme for regulating activities affecting marine mam- 
mals. If adopted, this rule would create new requirements, a new Federal bureauc- 
racy at NMFS, and has the potential for creating another Federal bureaucracy at 
the U.S. Fish and Wildlife Service. I hope that NMFS will refrain from continuing 
to promulgate this rule until Congress has addressed the issues it raises in this re- 
authorization process. 

Mr. Chairman, I look forward to working with you and the other members of the 
Committee during the coming months. Together, I believe that we can craft legisla- 
tion that recognizes the valuable role that zoological facilities play in educating the 
public about the wonders of marine mammals. Additionally, I believe that we will 
be able to clarify the regulatory responsibilities of NMFS for marine mammals. 

[Statement of Mr. Bilirakis follows:] 

Statement of Hon. Mike Bilirakis, a U.S. Representative from Florida 

First, I would like to take this opportunity to thank Chairman Studds and the 
Committee for holding these important hearings on the reauthorization of the Ma- 
rine Mammal Protection Act and the issue of public display. 

As most of you know, Florida holds about 40 percent of all captive dolphins. Fur- 
thermore, most of the dolphins that are seen in theme parks across the country and 
the world were probably captured or have ultimately come from Florida waters. 

In 1972, Congress passed the Marine Mammal Protection Act or (MMPA). The 
purpose of this legislation was to ensure that these mammals were maintained at, 
or restored to, healthy population levels. The Act established a moratorium on tak- 
ing or importing marine mammals except for certain activities regulated and per- 
mitted under the Act. These permitted activities include public display and scientific 
research. 

Unfortunately, jurisdiction over marine mammals is divided among several agen- 
cies. I believe we have a classic example of the dangers of Federal bureaucracy. We 
have several agencies contradicting one another with regard to this Act, and in some 
cases, I believe the agencies are not doing their job correctly to ensure that these 
mammals are being treated humanely and captured properly. 

Late in the 102d Congress, I introduced legislation titled the Marine Mammal 
Capture, Export and Public Display Act. I reintroduced this bill in the 103d Con- 
gress on January 27, 1993, and, to date, 43 Members of the House have joined as 
cosponsors. 

Simply put, I believe more can be done to prevent the needless deaths of our na- 
tion's marine mammal population. My bill, H.R. 656, aims to provide greater protec- 
tion for these animals in three main areas: capture, export, and public display. 

With regard to export, currently, the Marine Mammal Protection Act is silent on 
the export of marine mammals either caught in U.S. waters or bred in U.S. zoos 
and aquaria. 

My bill would end this silence. The bill bans the export of marine mammals, un- 
less the animal is exported in order to improve its health or well-being. It is simply 
hypocritical to place stringent requirements on theme parks and oceanariums in this 
country but allow dolphins to be exported to other countries where they may be mis- 
treated. 

Public display standards are also outlined in my bill, and I believe that the safety 
standards applied to dolphins and other marine mammals in captivity must be re- 
examined. My bill would require the Secretary of Agriculture to review the stand- 
ards established under the Animal Welfare Act for the care and habitat of marine 
mammals in captivity. 

Specifically, the Secretary would determine whether or not those standards are 
adequate, considering: (1) the sizes of marine mammals, (2) current knowledge of 
marine mammal physiology and behavior with respect to their need for exercise, au- 
ditory capabilities, and their pre- and post-natal requirements, (3) their psycho- 
logical and physical well-being, (4) their needs related to social grouping, including 
minimum group size, gender, mix, and age composition, (5) interspecies compatibil- 
ity, and (6) environmental modifications that might allow for more normal behavior 
and social interaction. 

H.R. 656 also addresses research permits. Permits for research on marine mam- 
mals would be limited to 2 years, unless the Secretary of Commerce issues an exten- 



8 

sion for a long-term study. Guidelines would be set up for release of marine mam- 
mals taken for research back into the wild so that this is done in the most humane 
manner possible. The Bill requires that the animals be released at their original site 
of capture and encourages non-invasive research whenever possible. 

Finally, my Bill imposes increased penalties for non-compliance. The Bill would 
raise the penalties for those who violate provisions of the Animal Welfare Act relat- 
ing to marine mammals to equality with the penalties under the Marine Mammal 
Protection Act. Specifically, the Bill establishes civil penalties of not more than 
$10,000 for each violation; criminal penalties for a knowing violation of not more 
than $20,000 for each violation; and includes the possibility of imprisonment for not 
more than one year for violation of the Act. 

My involvement in this issue stretches back several years and is based both on 
what I have observed and what informed individuals and experts in my district 
have indicated is the current state of affairs. In the spring of 1991, for example, 
a television station in my district aired a week-long report concerning marine mam- 
mals. This investigating series, "Dolphins: Dying to Please You," documented how 
these animals are captured off the coast of Florida and what life awaits them after 
capture. 

I believe that most people would be surprised to learn that in order to receive a 
permit to capture a dolphin, all one really needs to do is apply for a permit with 
the National Marine Fisheries Service. The fee for such a permit ranges from $25- 
$200 and the requirements on the permit holder are virtually non-existent — all one 
really needs is a net and a boat. 

Animals are also captured without the supervision of the National Marine Fish- 
eries Service or any other of the several regulatory agencies overseeing marine 
mammals. 

Economics drives the process. It is estimated that the worth of unmarked and 
trained dolphins ranges from about $50,000 to about $100,000. Thus, the rewards 
are significant while the barriers of entry are low. 

We must additionally remember the consequences of our actions. Dolphins in the 
wild generally live to be 45 years old, but this dramatically changes once the dol- 
phin is in captivity. Often, captive dolphins do not live to half of their normal life 
span. 

The reason for these deaths is often related to stress. We know that dolphins in 
the wild often travel together in families, better known as pods. Once these dolphins 
are captured they are thrown into a very different world. Dolphins will be separated 
from each other, unable to have the same contact with other members of their spe- 
cies. 

Many times, dolphins are also placed in small tanks of water. These tanks may 
be smaller than a swimming pool you might find in someone's back yard, and the 
dolphins are thus severely restricted in comparison to their natural state. This 
treatment alone often results in the deaths of these animals. 

We must end this cycle and treat dolphins as well as other marine mammals in 
an intelligent and humane manner. My Bill seeks to encourage this and I am hope- 
ful that the Subcommittee will also act on some of the reforms I have outlined. 

In closing, I would again like to express my gratitude to Chairman Studds and 
the Committee for giving me the opportunity to address the Subcommittee today. 

I would be delighted to work with the members of this Subcommittee — and, in- 
deed, the Full Committee — in any way possible to help craft and strengthen the Ma- 
rine Mammal Protection Act. 

Thank you. 

[Statement of Mr. Lipinski follows]: 
Statement of Hon. William O. Lipinski, a U.S. Representative from Illinois 

Mr. Chairman, I want to thank you for this opportunity to express my concerns 
about the reauthorization of the Marine Mammal Protection Act (MMPA). 

Last year the National Marine Fisheries Service (NMFS) issued proposed regula- 
tions which would change the way public display and scientific research facilities 
are regulated. While I applaud their efforts to protect marine mammals, I have 
some concerns about these new proposals. 

At a time when President Clinton is trying to streamline the Federal Government, 
the NMFS proposals apparently create a duplication of jurisdiction and procedures. 

If NMFS is concerned with strengthening current regulations, perhaps it could be 
better accomplished by helping the Animal and Plant Inspection Service (APHIS) 
to reinforce their procedures. It is my understanding that APHIS and NMFS cur- 
rently share jurisdiction of display and scientific facilities under an interagency 



agreement. A further agreement could avoid the creation of government bureaucracy 
and waste. 

I am concerned that the display and scientific community, which has played an 
invaluable role in educating the public about marine mammals, could become over- 
regulated. Perhaps amending the MMPA to create clear jurisdictions would be the 
best course of action. 

Mr. Chairman, I look forward to the outcome of these proceedings and the intro- 
duction of reauthorization legislation. 

Mr. Studds. We will hear from our colleague, a distinguished 
former member of this Committee, the gentleman from Florida, Mr. 
Goss. Welcome. 

STATEMENT OF CONGRESSMAN PORTER GOSS, A U.S. 
REPRESENTATIVE FROM FLORIDA 

Mr. Goss. Thank you, Mr. Chairman. I can say after listening to 
the introductory remarks that I am pleased to be back in the room. 
I think that the mood of this Committee has always been one of 
vision, tempered with a little humor. And I am pleased to see that 
it still laughs and I hope it does throughout this hearing. 

I would like to ask that my written statement be accepted into 
the record and I will try to abbreviate the salient points. 

Mr. Studds. Without objection. 

Mr. Goss. Thank you very much. The purpose of me being here 
really is to ask that you all consider folding into the legislation that 
you have before you my Bill H.R. 585, which is mistitled The Ma- 
rine Mammal Public Display Reform Act, and that is my 
misstatement. It is in fact titled that. It really should be called the 
Marine Mammal Capture Reform Act because it goes to the ques- 
tion of capture and how we do it, rather than to the question of 
display. The whole Free Willy argument, which was eluded to in 
opening remarks, is not what this legislation is about. 

I want to point out that this is not a new idea that I am going 
to explain in a moment. It is one that has been around for a while 
and I think it is particularly cogent to the fact that there are dif- 
ferences in our resources in this country. In some areas that are 
blessed with resources we do a very good job of trying to provide 
appropriate stewardship for them. And that is the case with dol- 
phins in Florida. 

The attractions industry was very alarmed when we first started 
talking about this, probably because of the title rather than the 
content of our Act. We have tried to alleviate their concerns. I have 
got to say that nobody in their right mind would think that Florida 
is not attractions-friendly. Florida is perhaps the most attractions- 
oriented State in the union. I would certainly say that Florida dol- 
phins are swimming all over the world at this point. We know they 
have been captured and exported to various exotic foreign destina- 
tions, including Baltimore and places like that, but also out of the 
country. 

We even export mice. We got them from California, but we ran 
them through Orlando and now they are trying to export them to 
Virginia, I understand. So we are very much in the business of at- 
tractions, and I hope that if anyone still has concerns they will lis- 
ten closely and read my remarks because we have addressed all of 
the areas that they were concerned about. 



10 

My bill is not Mr. Bilirakis' bill, which seeks to provide protec- 
tion for our dolphins. I am a co-sponsor of his bill. However, what 
we try and do in my bill is put a recognition on the fact that States 
like Florida have taken extra provisions to describe certain speci- 
fied areas done on a scientific basis as sanctuaries for certain types 
of marine resources. In some cases we call them aquatic preserves. 
We also have other labels for other types of water bodies. These are 
places where we do not allow normal commercial fishing to go and 
we have special rules in order that stocks can be replenished. It is 
a very basic simple concept and, frankly, it works quite well if we 
allow it to work. 

We are asking that States that do this and demonstrate that 
they have created these types of special sanctuary areas or reserve 
areas, be allowed to do that and protect those areas from other ac- 
tivities which might be permitted under a Federal permit granted 
by the National Marine Fisheries Service under the marine mam- 
mal process. 

The concern is: that we would be able to declare all of Florida 
off limits and nobody would be able to catch dolphins in Florida 
and that would destroy the industry because that is where, in fact, 
a great number of dolphins for display are caught. That is not what 
this is about and that is not what we are trying to do at all. We 
are trying to make sure that there is protection in those areas 
where dolphins do congregate, and these are not migratory dol- 
phins, these are not the true Atlantic dolphin that swim up and 
down the coast, these are the dolphins that basically like it in Flor- 
ida and live there and don't leave. They have resettled there as it 
were. And they deal in regions. We have regions such as Charlotte 
Harbor which many of you have heard me speak about before, 
where we found we were taking too many dolphins and depleting 
the stock. And wisely the Marine Mammal Service stopped, the Na- 
tional Marine Fisheries Service issued a moratorium on captures 
while we studied the matter further. And in fact it was their own 
study that showed us that we were having a depletion problem. 

Interestingly enough, the State of Florida had already created a 
series of regulations that said these types of water bodies are very 
important to Florida for reestablishing our stocks, and we shouldn't 
be allowing commercial taking of all kinds of fish and mammals in 
that area; in fact, we need to protect other things including 
manatees, a whole other series of issues. 

And Florida has been very responsible. To come along with a 
Federal law that undercuts that responsibility, in my view is an 
error. And that is what my legislation seeks to correct, to allow 
States that have done something responsible to continue to do that 
responsible thing. 

I don't believe there are any injured parties in this legislation. 
There are plenty of places to capture dolphins in Florida that are 
not in aquatic preserves, more than enough to take care of all the 
requirements that are out there right now, I understand. 

The situation is actually serious enough in the Gulf Coast area 
that there has been a moratorium on dolphin takings, because we 
have had an outbreak as we had off New Jersey some years ago, 
we don't understand it yet but there is a threat. And wisely there 
has been a moratorium. 



11 

Unfortunately, that moratorium may end in the very near future, 
and once again we will not have protection in our aquatic preserves 
for the stocks that we are trying to protect. 

The tragic story has been that the lack of coordination between 
what the State is doing now and what the Federal Government is 
doing under its present regulations has caused honorable people 
going about their business in a reasonable way, and I cite the Bal- 
timore Aquarium as a case of trying to properly get display dol- 
phins for the aquarium. To run afoul of Florida laws and get into 
a series of bad situations that totally could have been avoided if we 
had removed the inconsistencies in these laws. They would have 
been able to get their dolphins, there wouldn't have been bad press 
and probably the dolphins would have survived because we have a 
process of doing a better job of screening and understanding what 
we are about and how they are moved about and handled, rather 
than the way it did come about where, in fact, one of the dolphins 
did die. 

So, this legislation that I am proposing for your consideration is 
presently a free-standing bill and we are going to pursue it, but I 
think this is the appropriate place for it. If you don't, we will pur- 
sue it anyway, we hope with your blessing. Because I know of no 
negative consequences from proceeding with it. 

I thank you, Mr. Chairman. I am of course very available to an- 
swer any questions. 

[Statement of Mr. Goss follows:] 

Statement of Hon. Porter Goss, a U.S. Representative from Florida 

Mr. Chairman, I appreciate the opportunity to discuss the issue of marine mam- 
mal protection with your Subcommittee today. Specifically, I would like to discuss 
"The Marine Mammal Public Display Reform Act," H.R. 585 — a bill that has bi-par- 
tisan support, including support from several members of the Merchant Marine and 
Fisheries Committee. 

Simply put, my bill would allow States to provide additional protection for marine 
mammals in specifically designated State waters, and veto permits for marine mam- 
mal captures in those waters. By so amending the Marine Mammal Protection Act 
(MMPA), we could close a loophole that actually prevents protection for marine 
mammals. I believe that it is an unfortunate irony that under the current rules of 
the MMPA, States are denied the ability to safeguard specific populations of mam- 
mals in their own waters. 

In my State of Florida, there are laws on the books which would prohibit the cap- 
ture of marine mammals areas known as "aquatic preserves," which are specifically 
defined by statute, and have clearly defined borders. These areas have been set 
aside because the duly-elected government of Florida has decided that the preserva- 
tion of the natural resources within these boundaries is vital to the State's interests. 

The Marine Mammal Protection Act, unfortunately, and I believe, inadvertently, 
preempts Florida's effort to responsibly protect this element of its natural resources. 
Several other States have gone the extra mile to provide protection for their coastal 
waters and marine resources — like Florida, these States are also prevented from en- 
forcing these measures. 

As you are aware, H.R. 585 has come under heavy attack by the public display 
industry. I would like to take the opportunity to respond to the industry's concerns, 
and allay any fears that this amendment would somehow damage public display in- 
stitutions. 

The argument most commonly used against State veto power is that it would 
upset the MMPA's regulatory regime. Under the MMPA, the National Marine Fish- 
eries Service (NMFS) is charged with determining marine mammal populations in 
the Nation's coastal waters, and then setting quotas for animal removals in specific 
areas. Allowing States to close off certain waters to marine mammal captures would 
not prevent NMFS's from carrying out these responsibilities. 



12 

The display industry contends that dolphins are migratory, and therefore a 
"State's rights" amendment to the MMPA is inappropriate. While it's true that At- 
lantic dolphins are migratory, pods in the Gulf of Mexico tend to be region-specific. 

Another contention is that H.R. 585 would burden interstate commerce. While any 
State which attempted to limit dolphin captures to facilities within State boundaries 
would violate interstate commerce rules (and any State veto issued under such cir- 
cumstances would be invalid), that is not the type of "protection" provided for in this 
bill. 

Finally, the argument is made that there is no basis for the belief that dolphins 
do not do well in public display institutions. In terms of H.R. 585, this is also an 
irrelevant argument. States such as Florida have attempted to close off certain 
State waters for economic and environmental reasons, not because of any aversion 
to public display facilities. In fact, Florida has more public display facilities than 
almost any other State! 

I am aware that there has been a voluntary moratorium on dolphin captures in 
the Gulf of Mexico since 1990. NMFS has asked that this moratorium be adhered 
to while it updates its quota system, and while it investigates the so-far unexplained 
die-offs that have been occurring among the dolphin populations in the Gulf. 

Yet this is no reason to avoid action. This year NMFS extended several capture 
permits for Gulf waters. In addition, I am informed by that agency that the vol- 
untary moratorium could be lifted as early as this year. 

The purpose of the Marine Mammal Protection Act is to protect marine mammals, 
and if a State chooses to offer greater protection for dolphins within principals of 
the MMPA, it should not be prevented from doing so. H.R. 585, which was originally 
drafted with the assistance of the former chief counsel of the Marine Mammal Com- 
mission, was drawn to protect dolphins and States' rights within narrow limits. 

I urge this Committee to adopt this simple, rational approach to additional ma- 
rine mammal protection as it considers the reauthorization of the Marine Mammal 
Protection Act. 

Mr. Studds. We thank you and we miss your constructive con- 
tribution to this Committee and we are glad to have you partly 
back. Are there any questions for the gentleman? If not, let me 
again, I know that I speak for the staff as well, thank you for your 
cooperation and we will do our best to do the right thing. 

Mr. Goss. I appreciate that, thank you, Mr. Chairman. 

Mr. Studds. Thank you very much. While we bring forward the 
remaining seven witnesses as a single panel, let me invite anybody 
who needs a seat and can't find one, especially those of you who 
have to write, are welcome to sit on this lower tier here and you 
can take advantage of the reassembly a moment to do that. Anyone 
is welcome to do that. 

If all seven of the remaining witnesses could come up as a single 
panel, we would appreciate it. I apologize for some of our constric- 
tions here. I think the staff has alerted you to our infamous 5- 
minute rule. We are going to ask you to confine your oral state- 
ments to no more than 5 minutes. Your written testimony will ap- 
pear in its entirety in the record. And we will also apply the 5- 
minute rule strictly to ourselves in our questioning. If you have not 
seen this before, the lights there are somewhat barbaric. The yel- 
low light will go on when you have one minute left and when the 
red light goes on, you have concluded. We will, in fact, apply that 
rule to ourselves as well, so you shouldn't feel bad as a public clam- 
or for the Congress to apply all rules to itself. And we intend to 
do precisely that. 

I would just add that we are under considerable time pressure. 
The House is in session, we will probably be interrupted for votes 
and we are going to try to move as rapidly as we can. 

We will begin with Dr. Nancy Foster, Deputy Assistant Adminis- 
trator for Fisheries at NOAA, welcome. 



13 

STATEMENT OF DR. NANCY FOSTER, DEPUTY ASSISTANT AD- 
MINISTRATOR FOR FISHERD3S, NATIONAL OCEANIC AND AT- 
MOSPHERIC ADMINISTRATION, DEPARTMENT OF COM- 
MERCE 

Dr. Foster. Thank you. Good afternoon, Mr. Chairman and 
members of the Committee. I am pleased to be here one more time 
to testify before this Committee on aspects of the Marine Mammal 
Protection Act (MMPA) other than marine mammal interactions 
with commercial fisheries. 

The MMPA was passed over twenty years ago, we believe with 
the objective of offering special protection and humane treatment 
to all marine mammals, both in the wild and in captivity. 

Some years ago, back around 1988, we became aware of some 
problems that we were having in administering our permitting pro- 
gram and we began the infamous 5-year review of the permit pro- 
gram. The review resulted in some administrative improvements 
which we are trying to implement now and in a proposed rule. The 
rule was aimed at clarifying and ensuring uniform application of 
procedures and requirements. 

Today it would seem to us that we face two questions. First, does 
the Marine Mammal Protection Act provide its special protection 
for captive animals, and if so, is there a duplication of regulatory 
responsibility among Federal agencies? Second, what and how 
should permitted activities be handled dealing with marine mam- 
mals in the wild? 

It is our understanding that the public display community be- 
lieves that the MMPA's jurisdiction over marine mammals ends 
after the animal has been removed from the wild. They also feel, 
I think, that there is some duplication of responsibility, particularly 
between the Animal and Plant Health Inspection Service (APHIS), 
NMFS, and the Fish and Wildlife Service. And they are suggesting 
amendments to deal with this. 

Needless to say, we disagree with both assertions and in fact we 
think that such amendments are unnecessary. We find it kind of 
curious that we are here after 20 years of applying Marine Mam- 
mal Act protection to captive animals and 20 years of working with 
APHIS to discuss these particular questions. 

We do believe that the current law applies to animals in cap- 
tivity. And we believe that our responsibility and APHIS's respon- 
sibility are complementary rather than duplicative, and we think 
that is borne out through our MOA. 

However, we also agree that since this question has come up it 
has to be dealt with, that it is too important to leave for everybody 
to interpret on their own. We agree that we should deal with it di- 
rectly and we hope to see a clear statement of the intent of Con- 
gress. We think that since this is the time when controversy over 
public display continues, that it is critical that the regulated com- 
munities and the public understand what laws apply to these ani- 
mals and what Federal agency has jurisdiction and to what extent. 

Now looking into the wild, we have been very concerned with the 
growing dissatisfaction among the research community about the 
fact that they perceive that the regime under which they operate 
is often more burdensome than that which we apply to the inciden- 
tal take of marine mammals in commercial fisheries. 



14 

We agree that the permit requirements today under the MMPA 
are too burdensome, lengthy and inflexible when it involves re- 
search of the non-intrusive kind involving generally close approach 
to marine mammals in the wild. And we believe that the MMPA 
should be amended to shorten and simplify the process for research 
involving these low level types of harassment. 

We also believe that there should be a provision made for yet an- 
other kind of permit; the kind of permit that would allow the public 
to observe these animals in the wild and would allow them to pho- 
tograph and bring the films and photographs back to those who 
will never have the opportunity to see these animals in their natu- 
ral habitats. 

We think that the way it is now, we find ourselves forcing these 
activities under research permits. And that is simply not workable. 

We also believe that the law should be amended to allow the im- 
port and export of native art for purposes of exhibit in museums 
or any other institution with public access and also for other pur- 
poses involving cultural exchanges. 

We have a few other suggestions but these are all included in my 
testimony, which I will submit for the record, and I will be glad to 
answer any questions. The green light is still on. 

[Statement of Dr. Foster can be found at the end of the hearing.] 

Mr. Studds. There is absolutely no precedent for that whatso- 
ever. We don't know how to proceed. Thank you very much. Ms. 
Mollie Beattie, the new Director of the Fish and Wildlife Service. 
I think this is your first visit officially with us. We are delighted 
to have you. 

STATEMENT OF MOLLIE BEATTIE, DIRECTOR, U.S. FISH AND 
WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR 

Ms. Beattie. Thank you very much, Mr. Chairman. It is a de- 
light to be here and to have this be my first testimony on such an 
important issue and one in which the Fish and Wildlife Service is 
deeply interested. 

In addition to an overview of the activities of the U.S. Fish and 
Wildlife Service, my statement, of which a longer version has been 
submitted for the record, provides information on the status of ma- 
rine mammals under our jurisdiction and proposals we are consid- 
ering for amending the Act. 

The Act establishes a Federal responsibility for the conservation 
of marine mammals. Under the Act, the Secretary of the Interior, 
through the Service, is responsible for protecting and managing 
polar bears, sea and marine otters, walruses, manatees and 
dugong. 

In conducting these activities, the Service maintains a coopera- 
tive working relationship with the Marine Mammal Commission 
and its committee of scientific advisors, the National Marine Fish- 
eries Service, the newly created National Biological Survey, the Bu- 
reau of Indian Affairs, and other Federal agencies. We also cooper- 
ate with affected States, Alaska native organizations, conservation 
organizations, and other entities on marine mammal issues of mu- 
tual concern. 

All three species of manatees, the dugong, the marine otter and 
the southern or California sea otter are listed as endangered or 



15 

threatened under the Endangered Species Act and, therefore, are 
considered depleted under the Marine Mammal Protection act. Ma- 
rine mammal species under service jurisdiction in Alaska are con- 
sidered to be non-depleted and populations are currently believed 
to be healthy. 

The Pacific walrus, a population shared with Russia, had an esti- 
mated minimum population of 201,000 in 1990 based on a joint 
Russia-U.S. population survey. Although this estimate is less than 
the estimate of 232,000 animals derived from the 1985 survey, 
anomalous ice conditions prevailed during the 1990 survey and 
comparing the two estimates is, at best, a tenuous proposition. The 
Service believes that the Pacific walrus population is at or near 
historic high levels and is stable or slightly decreasing. 

The polar bear population in Alaska is shared with both Canada 
and Russia and is believed to number about 5,000 animals. The 
northern, or Beaufort Sea, population is estimated to be 1,800 ani- 
mals. The western, or Bering-Chukchi Sea, population is believed 
to number about 3,200 animals. The Service considers polar bear 
stocks in Alaska to be healthy and possibly increasing slightly. 

A growing population of sea otters in Alaska estimated to num- 
ber between 100,000 and 150,000 has become reestablished in most 
of the species' historic range and is considered by the Service to be 
healthy. Although the population as a whole is healthy, specific 
subpopulations within the State are of concern. The south-central 
Alaska sea otter population is in a recovery phase from acute mor- 
tality following the Exxon Valdez oil spill of 1989, and long-term 
sublethal effects on the population are not well understood. In 
southeast Alaska, harvest numbers have increased dramatically 
and there is concern that the population level may be affected. 

Although the Service believes that population levels of these 
three Alaska marine mammals are sound, we are considering pro- 
posals addressing issues necessary to ensure their long-term viabil- 
ity. These proposals include the following, that will be discussed in 
the order they appear in the Act. 

Whether the Act's language is precise enough to allow specific 
protection of marine mammal habitats has been questioned. 

In section 2(7) of the Act, Congress found that marine mammal 
management should "maintain the health and stability of the ma- 
rine ecosystem." While single-species-oriented initiatives have 
achieved some important success under the Act, greater emphasis 
must be placed on understanding and managing the complex fac- 
tors that govern the health and stability of the marine environ- 
ment. 

By adopting an anticipatory, ecosystem-based approach to man- 
aging marine mammals and their habitat, it should be possible to 
protect living marine resources, avoid legal restrictions that could 
hinder resource use and development activities that impact pro- 
tected species, and advance the Act's primary goal of marine eco- 
system health and stability. 

To ensure the authority to develop regulations to protect specific 
threatened or vulnerable habitats, we are considering recommend- 
ing amendments to sections 2 and 3 to include and broaden habitat 
protection provisions. The habitat protection provision of the 1973 



16 

International Agreement on the Conservation of Polar Bears may 
also need to be specifically addressed. 

The Service is concerned with the clarity of definitions in section 
3. For example, the Act is ambiguous about what constitutes an au- 
thentic native handicraft, and the lack of specificity hinders man- 
agement activities such as providing sound legal advice to native 
hunters. 

The term edible portion is not currently defined, and that has led 
to the sale of gall bladders and male reproductive organs as 
aphrodisiacs or for other purposes. The increased sale and inter- 
state transportation of these items could affect the harvests of cer- 
tain species, such as polar bears. 

We are also reviewing ways to enhance the management provi- 
sions of section 101(b) by authorizing the Secretary to initiate the 
development of harvest restrictions when the population of a spe- 
cies declines to 10 percent above the depletion level. 

The actual implementation of those restrictions would not occur 
until the species is at the level of depletion. We are considering a 
process that would maintain the integrity of the native subsistence 
exemption while ensuring that a critical regulatory program would 
be in place at the point of depletion and not years later. 

This proactive approach would ensure that marine mammals 
continue to provide subsistence benefits to future generations of 
Alaska natives without imposing unnecessary restrictions on these 
benefits. 

We emphasize our support of a native exemption, resist any at- 
tempt to weaken it, and restore our pledge to work with Alaska na- 
tives should we find ourselves in a depletion situation. Thank you, 
Mr. Chairman. 

[Statement of Ms. Beattie can be found at the end of the hear- 
ing.] 

Mr. Studds. Thank you. Let me just reassure members who are 
wondering about those bells. Six bells is either a recess or an air 
raid and we have ascertained it was the former. We are back in 
session. Dr. John Reynolds, Chairman of the Marine Mammal 
Commission. Dr. Reynolds. 

STATEMENT OF DR. JOHN E. REYNOLDS, CHAIRMAN, MARINE 
MAMMAL COMMISSION 

Dr. Reynolds. Thank you, Mr. Chairman. It is a pleasure to ad- 
dress you and the Committee this morning. 

The written statement that I have provided you is long and com- 
prehensive and at this point I would just like to summarize certain 
important points that we made in it. 

Over the past several years many scientists, including members 
of the Commission and its Committee of Scientific Advisors, have 
expressed concerns regarding the permitting process. In response 
to the intensity of these concerns, the Commission convened two 
workshops in 1993 to discuss the perceived problems and to iden- 
tify possible solutions. 

Seven major problem areas are identified and noted in my writ- 
ten testimony. 

In my written statement I also suggest several steps that Con- 
gress might take to address these problems including the following: 



17 

encourage the National Marine Fisheries Service and the Fish and 
Wildlife Service to develop clear, concise instructions for preparing 
permit applications; direct the Services to advise applicants within 
30 days of receiving an application if it is complete or not, and fin- 
ish reviews within 60 days of an application's being judged com- 
plete; authorize the Services to exempt certain categories of re- 
search from the notice and comment requirement and perhaps 
other requirements related to permit review; streamline procedures 
for authorizing the importation of specimens for scientific purposes; 
clarify in report language that the term bona fide refers to an ap- 
plication made in good faith without fraud or deceit, an application 
made with earnest intent, and one for which the scientific purpose 
is neither specious nor counterfeit; amend the Act to enable the 
Secretaries to authorize the taking of marine mammals including 
depleted species, incidental to filming for either educational or com- 
mercial purposes under certain conditions when harassment might 
occur; and authorize the Secretaries to waive the 30-day public no- 
tice and comment period when delaying research could result in 
harm to a species, population, or individual marine mammal, or re- 
sult in loss of unique, unforeseen research opportunities. 

Other problems with the scientific research program identified by 
the participants can be addressed administratively, we think. 

The Commission is opposed to the needless use of invasive and 
lethal research techniques, but believes that there are instances 
when lethal or invasive research is necessary and appropriate to 
further basic knowledge. 

We also note that existing statutory provisions ensure that such 
techniques will not be used when nonlethal or less invasive meth- 
ods are practicable. 

In my written statement, I address at length the question of 
which agency or agencies should be given jurisdiction over captive 
marine mammals. The Commission believes that split jurisdiction 
works. While the Animal and Plant Health Inspection Service has 
experience with captive animals under the Animal Welfare Act, 
and can inspect facilities, it does not have the expertise with re- 
spect to marine mammal biology, physiology, behavior, and specific 
marine mammal needs that the National Marine Fisheries Service 
and the Fish and Wildlife Service have. 

The responsibilities of the three agencies are largely complemen- 
tary. Since the Interagency Agreement in place since 1979 works 
and there is little duplication of effort under the Animal Welfare 
Act and the Marine Mammal Protection Act, we recommend that 
Congress clarify that the jurisdiction over captive marine mammals 
is intended to be provided under both Acts. 

My written statement also provides comments on other permit- 
related amendments proposed for consideration during reauthoriza- 
tion. These include the use of marine mammals in interactive dis- 
plays, the importation of depleted marine mammals for public dis- 
play, the applicability of the National Environmental Policy Act to 
the capture of wild marine mammals for the purpose of public dis- 
play, and the prohibition against feeding wild marine mammals. 

My written statement also discusses issues of interest to Alaskan 
native groups who seek to ensure 1) that the current exemption al- 
lowing the taking of marine mammals for subsistence and handi- 



18 

craft purposes is maintained; 2) that cooperative efforts are en- 
hanced between the Alaskan natives and the Fish and Wildlife 
Service in managing polar bear, sea otter and walrus populations; 
and 3) that the restrictions regarding importation of personal items 
made from marine mammal parts be relaxed. 

The Commission supports retention of the existing exemption for 
Alaskan natives. As was recognized by Congress when the Act was 
passed in 1972, traditional uses of marine mammals by Alaskan 
natives should be protected and given primacy over other uses. 

The Commission shares the belief that cooperative efforts be- 
tween appropriate government agencies and native groups provide 
the best long-term solution for managing the take of marine mam- 
mals so as to not adversely affect marine mammal populations 
while meeting subsistence requirements. 

The Commission further believes that the Act now provides au- 
thority to the Fish and Wildlife Service to grant financial assist- 
ance to Alaskan natives participating in cooperative management 
activity, but that it might be useful to note this in report language 
so as to help ensure that moneys are available. 

The amendment to authorize importation of certain marine mam- 
mal items would likely have little effect on marine mammal popu- 
lations but would have important benefits to Alaskan natives by 
fostering relations among circumpolar natives. With a few minor 
modifications, enactment of such an amendment is supported by 
the Commission. 

Thank you for inviting me to speak to you today. 

[Statement of Dr. Reynolds can be found at the end of the hear- 
ing.] 

Mr. Studds. Thank you very much, sir. Next, Mr. Robert Jenkins 
of the American Zoo and Aquarium Association. Mr. Jenkins. 

STATEMENT OF ROBERT JENKINS, AMERICAN ZOO AND 
AQUARIUM ASSOCIATION, ALLIANCE FOR MARINE MAMMAL 
PARTIES AND AQUARIUMS 

Mr. Jenkins. Good morning. Mr. Chairman and members of the 
Committee, I am Robert Jenkins, Executive Officer for Environ- 
mental Affairs at the National Aquarium in Baltimore. 

Today I am representing the 31 members of the Alliance of Ma- 
rine Mammal Parks and Aquariums and the 162 accredited institu- 
tional members of the American Zoo and Aquarium Association. 

The Alliance and the AZA strongly support the Marine Mammal 
Protection Act. The MMPA was enacted to protect declining popu- 
lations of marine mammals. To increase awareness and generate 
support, Congress looked to zoos and aquariums to educate the 
public about these magnificent animals. It is understood that pub- 
lic display facilities reached millions of Americans every year with 
effective education and conservation messages. 

Today, more than 115 million people visit our facilities each year. 
In addition to learning the basics of marine mammal biology and 
natural history, visitors to our facilities leave with a new aware- 
ness that the health of the natural world and human behavior are 
closely intertwined. 

In addition to the displays and information that are presented to 
all visitors, our facilities reach out to our communities with spe- 



19 

cially designed, in-depth programs that enhance classroom science. 
Over 8 million children visit our facilities each year; and another 
2 million participate in outreach programs. Many State educational 
guidelines encourage teachers to use our facilities as community 
science resources. There are simply no other programs available 
that can compare to the education opportunities we offer. 

In addition to our role as public educators, we have spent over 
$20 million on scientific research alone in the last 5 years. We have 
published over 1600 research studies reporting our breakthroughs 
in animal health, behavior, physiology, blood chemistry, animal 
communication and reproduction. Those efforts have led to incred- 
ible advances in our veterinary care, husbandry training practices 
and behavioral and social enrichment programs. 

Today, nearly 40 percent of the marine mammals in our facilities 
have been born and raised there, a result of the extraordinary care 
given by our veterinarians and marine mammal biologists who 
have devoted their lives to the well-being of these animals. 

Further applying our knowledge, we regularly volunteer time 
and resources to help rescue, rehabilitate, and hopefully, release 
the marine mammals who strand on our beaches. This has resulted 
in the return of over 1500 live marine mammals back to the wild 
in the last 5 years alone, more than we currently have in our col- 
lections. 

Our institutions have enormous expertise and knowledge that is 
recognized and sought after around the world. Our experts helped 
in the Valdez oil spill. We have been consulted by China in their 
work on the Baiji River dolphin now close to extinction. And, at the 
request of NMFS, we have applied our knowledge in a study on the 
health of dolphins in the Gulf of Mexico, to name but a few exam- 
ples. 

The American public knows what we do and they support it. Ac- 
cording to a recent independent Roper Poll, a nearly unanimous 92 
percent recognized the important role we play in educating our 
visitors about marine mammal conservation. An impressive 86 per- 
cent stated that they are more likely to be committed to conserva- 
tion after visiting our facilities, just as the drafters of the MMPA 
knew they would. 

Mr. Chairman, the MMPA is an important law, sufficient in 
scope and authority. We fully support is reauthorization. As the 
Congress considers adjustments to the Act, we urge you to reaffirm 
the important role modern zoos and aquariums play in achieving 
the goals of the Act. 

We would also like to see simple language added that would 
reenforce the Act's original intent and clarify the confusion over 
agency jurisdiction which has diverted time and resources away 
from our programs and our animals. 

The proposed permit regulations recently published by NMFS 
serve as a case in point. If adopted, exemplary facilities like those 
in the Alliance and the AZA would face burdensome and confusing 
requirements. These regulations would duplicate and perhaps con- 
flict with standards already set by the Animal and Plant Health 
Inspection Service. Such duplication would be cumbersome and, in 
the end, would not provide any real benefit to marine mammal wel- 
fare or conservation. 



20 

In an era of Federal deficits and efforts to streamline government 
bureaucracy it does not seem wise to have several agencies regulat- 
ing the same thing. 

Mr. Chairman, since 1972, the public display community has an- 
swered the call to help conserve marine mammals. We ask that you 
support the invaluable work we do and help us ensure that present 
and future generations of Americans have the opportunity to learn 
about the importance of marine mammal conservation. 

Our specific legislative recommendations are found in my written 
testimony. To assist the Subcommittee in these deliberations, I 
have asked a panel of experts to be with me here today and I can 
introduce them at the appropriate time. I thank you for the oppor- 
tunity to comment. 

[Statement of Mr. Jenkins can be found at the end of the hear- 
ing.] 

Mr. Studds. Thank you very much, sir. Let me just observe 
those two bells are a vote on the floor. It is my intention to adjourn 
for only as long as it takes me to get across the street and back, 
which I would guess is about seven and one-half minutes. So, we 
will stand at adjournment just for that amount of time. Thank you. 
We apologize for the delay. 

[Recess.] 

Mr. Studds. We apologize for the first of several inevitable inter- 
ruptions and we will resume with Dr. John Grandy of the Humane 
Society. Dr. Grandy. 

STATEMENT OF JOHN GRANDY, VICE PRESIDENT FOR WILD- 
LIFE AND HABITAT PROTECTION, HUMANE SOCIETY OF THE 
UNITED STATES 

Mr. Grandy. Good morning, sir. I am Dr. John Grandy, vice 
president for Wildlife and Habitat Protection with The Humane So- 
ciety of the United States and Humane Society International. 

I thank you, Mr. Chairman, for the opportunity to testify today 
on behalf of The Humane Society of the United States and fourteen 
other member organizations of the Marine Mammal Protection Co- 
alition and our combined membership and constituency of over 3 
million persons worldwide. 

Public opinion concerning marine mammals in captivity has been 
changing. Documentaries, research on free living animals, wildlife 
photography and films, such as "Free Willy" as you mentioned, 
have established a new public awareness of the complex nature of 
these animals. 

The hundreds of thousands of calls made to the 800 number at 
the end of Free Willy, as well as the proliferation of aquaria with- 
out live marine mammal exhibits, the closing of seasonal dolphin 
shows at amusement parks, and State legislation prohibiting public 
display, illustrate that the debate on public display is entering a 
new era. 

My comments are detailed in my testimony and I will summarize 
them at this time. First, we believe the Marine Mammal Protection 
Act should be amended to clarify the jurisdiction between APHIS 
and the National Marine Fisheries Service. We certainly agree with 
Dr. Nancy Foster that this needs to be done and it needs to be done 
now. 



21 

Our organizations believe strongly that the National Marine 
Fisheries Service has primary responsibility for the care and main- 
tenance of marine mammals in captivity. It is vital that primary 
oversight of marine mammals continues to rest with NMFS, not 
APHIS. APHIS has been persistently reluctant to modify certain 
requirements for marine mammals because such requirements 
could then apply to all captive animal species. APHIS simply has 
too broad a mandate to have primary oversight of captive marine 
mammals which have very specialized species-specific require- 
ments. 

Most importantly, however, we must clarify that the Marine 
Mammal Protection Act clearly grants NMFS statutory authority 
over all marine mammals, regardless of the environment they in- 
habit. As NMFS has maintained, and we concur, captivity is a form 
of take and NMFS has jurisdiction over marine mammal takes. 

Second, the Marine Mammal Protection Act should be amended 
to prohibit the capture from the wild of marine mammals for public 
display as well as their import and export. Public display can be 
a tool for education and conservation without capturing healthy in- 
dividuals from intact social groups in the wild. 

Public display facilities can use captive-bred and unreleasable 
stranded animals for their exhibits when this is appropriate. 

Furthermore, we now have a better understanding of marine 
mammal species in the wild. We know that many exhibit long-term 
familial bonds and in general are socially complex, long-lived and 
mentally sophisticated creatures. Wild cetaceans may travel up to 
50 to 100 miles a day, dive several hundred feet deep, and spend 
only 20 percent of their time at the surface of the water. The tran- 
sition from their natural environment to captivity in a small con- 
crete tank can only be unimaginably traumatic. 

The capture process itself, where animals are rounded up, netted, 
lassoed, or driven into shallow water and separated from their com- 
panions is incredibly cruel and stressful. 

The public has received the message of conservation and habitat 
protection. We urge the Congress to maintain and support that. 

Third, the Marine Mammal Protection Act should be amended to 
prohibit all forms of direct contact between the public and marine 
mammals. We believe that petting pools, feeding programs, and 
swim-with-the-dolphin programs do not constitute legitimate forms 
of public display under the Act. 

We believe there is a strong potential for tragedy in these forced 
interactions and we oppose them. 

Fourth, the MMPA should be amended to prohibit the intentional 
feeding of marine mammals in the wild. We strongly supported 
NMFS when it issued regulations banning this disruptive practice. 
Feeding wild marine mammals may habituate them to the ap- 
proach of boats which could result in injury and may cause disrup- 
tion of natural foraging patterns and result in introduction of 
pathogens and parasites. 

Fifth, the Marine Mammal Protection Act should require that the 
disposition of stranded marine mammals be strictly regulated. The 
Marine Mammal Protection Act is unclear about the disposition of 
stranded animals and this should be clarified. 



22 

Sixth, the Marine Mammal Protection Act should be amended to 
prohibit invasive and lethal research on marine mammals unless 
it will directly benefit the species in the wild. We believe that the 
killing of healthy marine mammals in scientific studies and 
invasive experiments are justified only under a limited set of cir- 
cumstances and when no alternative exists. 

We again direct the Committee to the Bilirakis bill which con- 
tains language addressing this issue. 

In conclusion, Mr. Chairman, I want to support Fish and Wildlife 
Director Mollie Beattie and express our support for an amendment 
which would strongly support habitat preservation. 

And last, I would like to bring to the Committee's attention a 
publication which we have put out entitled "Small Whale Species, 
the Case Against Captivity." We will make that available to you, 
Mr. Chairman for the record and to the other members. Thank you. 

[Statement of Dr. Grandy can be found at the end of the hear- 
ing.] 

Mr. Studds. Thank you very much, sir. Mr. Pungowiyi and Dr. 
Tyack, at the request of Congressman Young's staff— they are try- 
ing to locate him, which should not be hard, he is quite large — we 
are going to reverse the order of the last two witnesses if that is 
OK, so that he might have a chance to get back to hear his con- 
stituent from Alaska. And we will now go to my constituent, Dr. 
Peter Tyack, from the Woods Hole Oceanographic Institution. Dr. 
Tyack. 

STATEMENT OF DR. PETER TYACK, RESEARCH ASSOCIATE, 
WOODS HOLE OCEANOGRAPHIC INSTITUTION 

Dr. Tyack. Mr. Chairman and members of the Committee, I 
would like to both thank you and the snowplows of Logan Airport 
for this opportunity to appear before you this morning. 

My name is Peter Tyack and I am a biologist on the scientific 
staff at the Woods Hole Oceanographic Institution, a private non- 
profit institution for research and education in oceanography. 

For the past two decades, I have studied the acoustic communica- 
tion and social behavior of whales and dolphins. Conservation biol- 
ogy is not my profession, but I hope that I can contribute an inde- 
pendent scientific perspective. 

Marine mammal populations in U.S. waters are primarily threat- 
ened by unintentional effects of human activities. Overfishing may 
deplete marine mammal prey enough to reduce the carrying capac- 
ity of the environment. Chemical and noise pollution degrade the 
quality of marine mammal habitats. Ships and fishing gear kill or 
injure marine mammals by accident. Ironically, NMFS has imposed 
tougher controls on scientists working to benefit these animals 
than on these more important problems. 

This regulatory focus on scientific research is completely out of 
balance with the relative risk these activities pose to marine mam- 
mals. 

Let me give an example from the most endangered baleen whale, 
the northern right whale. Most of the 300 or so right whales left 
in the western North Atlantic carry scars from vessel collision or 
entanglement with fishing gear, and more adults die from vessel 
collision and net entanglement than any other known causes. 



23 

Under current regulations, there are no preventive controls on 
ships or fishing gear most likely to kill or injure the last remaining 
right whales. In contrast, more and more controls are being placed 
on the scientists who document these problems. 

A group of biologists on Cape Cod risk their own lives to save en- 
tangled whales. Since they approach whales closely, NMFS re- 
quired them to obtain permission to take these whales by harass- 
ment. The permit took a year to be issued. 

If the scientists had not continued to rescue whales illegally dur- 
ing this year, whales might have died from the lethal combination 
of lax regulation of fisheries combined with over-regulation of the 
rescues. 

How did this policy go so wrong? The Marine Mammal Protection 
Act of 1972 banned any taking of marine mammals. For commer- 
cial fisheries, take is usually construed as killing or injuring. How- 
ever, when a scientist asks for a research permit, take has been de- 
fined to include minor behavioral reactions of negligible impact. 

NMFS devotes a significant fraction of its regulatory effort track- 
ing these research permits, treating people who photograph an ani- 
mal with similar rules as those who shoot one. 

Another example may illuminate the problems of this double 
standard. Extensive research shows that whales are disturbed by 
loud ships when they are many miles away. These results suggest 
that under current regulations, each ship takes thousands of ma- 
rine mammals a year by harassment. If commercial ships operated 
under the same rules as research, they could seldom leave the har- 
bor. 

There is a critical need to redefine "take" in the Marine Mammal 
Protection Act in a way that focuses effort based upon magnitude 
of risk to animal populations. I support separating takes into three 
different risk categories, one involving predictable death or injury, 
a second involving potential harm, and a third involving negligible 
impact. 

Given the past regulatory history, it may be important to require 
regulators to control the most dangerous takes before committing 
resources to insignificant ones. 

The purpose of permits for scientific research under the MMPA 
was to allow scientific activities that would otherwise be prohib- 
ited. The current permit process for scientific research is not inap- 
propriate for the rare requests for lethal or injurious research. 
However, I do not support requiring permits for research activities 
that have negligible impact. 

The Marine Mammal Protection Act should be amended to allow 
a general authorization for these research activities. 

It is less clear how to regulate research activities with an un- 
known potential to harm or harass animals. And I would have to 
emphasize that we have profound ignorance of some of these im- 
pacts now. However, I do not believe that regulating individual acts 
of non-injurious takes is appropriate. 

The impact of harassment and disturbance on populations de- 
pends upon cumulative impacts which are a form of habitat deg- 
radation. I believe they are better regulated as habitat manage- 
ment problems than by attempting to regulate individual acts. 



24 

Marine mammal protection will be better served by redirecting 
resources from extensive permitting of trivial research takes to 
stock assessment and conservation plans with some enforcement 
power. 

The Marine Mammal Protection Act must be updated from regu- 
lating the lethal takes of the whaling era to an era where a broad 
array of unintentional impacts threaten marine mammals and the 
ecosystems upon which they depend. Thank you. 

[Statement of Dr. Peter Tyack can be found at the end of the 
hearing.] 

Mr. Studds. Thank you very much. Needless to say, Dr. Foster, 
we are shocked. Shocked. I assume — I have to assume — it is law- 
yers in your midst that are responsible for this activity. I, myself, 
have spoken personally with the whales referred to by Dr. Tyack, 
and they are in full concurrence. And as a matter of fact, they have 
suggested we put the lawyers out there to examine who is 
harassing whom. Anyway, the purpose of our switch has occurred 
and it is a pleasure now to recognize Mr. Caleb Pungowiyi, Presi- 
dent of the Inuit Circumpolar Conference. Mr. Pungowiyi. 

STATEMENT OF CALEB PUNGOWIYI, PRESIDENT, INUIT 
CIRCUMPOLAR CONFERENCE 

Mr. Pungowiyi. Thank you, Mr. Chairman and members of the 
Committee and ladies and gentlemen. My name is Caleb 
Pungowiyi. I am president of the Inuit Circumpolar Conference, an 
international organization representing the Inuits of Canada and 
Greenland, Alaska and Russia. 

My testimony today is on behalf of Alaska natives and our broth- 
ers in Russia, Canada and Greenland. The encroachment of civili- 
zation has not been kind to our people. From the days of the Rus- 
sian fur trade, the Yankee whalers and the Gold Rush days, we 
have suffered tremendous social injustices and hardship. Many of 
our people have died from starvation, mistreatment and diseases. 

My mother's family were the sole survivors from the village of 
350 people who died of mass starvation. It occurred on St. Law- 
rence Island in the late 1880's. I remember my grandmother telling 
us of leaving the bodies where they lay because they were too weak 
to give them proper burial, and the reason I bring this up is be- 
cause the exploitation of resources and the hardship it caused our 
people is just in recent history. 

Arid we have no intention of seeing the marine mammals deci- 
mated in a way that it hurts our people. Like the Canadian people, 
we have managed our resources and our use of marine mammals 
through our own cultural rules. And these rules have been success- 
ful for hundreds of years. And we continue to abide by them today. 

I believe that the exemption in the Marine Mammal Act is the 
Congress's recognition of the strength and value of native cultural 
management of marine mammals. 

Since the enactment of the Marine Mammal Act, we have made 
the protection of the native exemption our priority. The exemption 
is not without its fault and there is probably no other law or policy 
in the modern world that restricts the economic activity of a group 
of people to handmade items and also restricts the sale of products 
only to its own people. 



25 

It is as if our people live in the fishbowl and every action we take 
is watched by the world community and every mistake made by our 
members is magnified beyond its proportion. 

The suggestion made to you today by the Fish and Wildlife Serv- 
ice is an example of why we feel that way. The native exemption 
has worked well but Fish and Wildlife does not seem to understand 
that. 

We have come to you today with what we see as practically un- 
necessary and unacceptable changes to the native exemption. 

There is no problem in the definition of handicraft and we cur- 
rently have full legal authority to interpret the undefined terms of 
the statutes. 

The mention of sales of gallbladders and male organs is some- 
thing that they have not communicated to us as a concern and if 
they are aware of illegal sales, then Fish and Wildlife should en- 
force the ban of these sales, rather than bring it to the public as 
a problem. 

There are currently a number of excellent vehicles for working 
within the native community. These commissions were formed for 
the purpose of protecting the uses of marine mammals. The empha- 
sis was to respond to situations that threaten our subsistence life- 
style and to show that we are genuinely concerned about the con- 
servation of marine mammals. 

In 1977, the Alaska Eskimo Whaling Commission was formed in 
response to an international effort to ban the subsistence harvest 
of bowhead whales. The Alaska Eskimo Whaling Commission is 
now seen as an example of the native community's ability to orga- 
nize for species management, conduct and develop scientific re- 
search, and implement self-management. 

The Eskimo Walrus Commission was formed in 1978 in response 
to the State of Alaska's efforts to manage walrus. It is in these and 
other efforts that we have consistently made efforts to assist the 
agencies to improve the knowledge of the species, to monitor the 
native take, and to avoid waste. 

I believe that the cooperation with native communities is nec- 
essary to ensure the conservation of marine mammals. It is only 
if the Alaskan natives have a stake in research regulation and en- 
forcement that the management action can be effective. 

It is our experience with the U.S. Fish and Wildlife Service, how- 
ever, that cooperation is more an exception than the rule. The sug- 
gestions made by the Director today were never discussed with the 
native community before. 

Again, the key is cooperation and the best model of that is co- 
management, where there is a genuine sharing of power and re- 
sponsibility over all forms of management. 

The service — excuse me — am I out of time? 

Mr. Studds. We have a certain degree of flexibility when dealing 
with people from southeastern Massachusetts and Alaska. We un- 
derstand that you have traveled a very great distance and of course 
Dr. Tyack has traveled an equal distance when you talk about vir- 
tual distance, so please take an extra couple of minutes. 

Mr. Pungowiyi. Thank you, sir. The Service has made some 
great strides in this direction with respect to migratory birds. The 



26 

government should follow suit with respect to marine mammals as 
well. 

Therefore, we request amendments in the Marine Mammal Pro- 
tection Act to give us the vehicles for co-management in research 
regulation, monitoring and enforcement. 

Two of the points I would like to make about the Marine Mam- 
mal Protection Act with respect to native use of marine mammals. 
First, I urge the Congress not to depart from the current tools for 
measuring the health of the species. 

I am particularly concerned with the language in the latest 
House draft which would create a new category of "critical". And 
would set allowable levels of take through the enactment of so- 
called PBR, potential biological removals. The Alaskan native com- 
munity feels that these are not necessary to resolve the issue of il- 
legal take of marine mammals by commercial fisherman. 

While strictly speaking this is not an issue of this hearing, we 
feel strongly enough that I should mention it. The second point I 
would like to make concerns the importation of marine mammal 
parts into the United States. At the present time, if I take a parka 
to Canada with the polar bear ruff, I cannot bring it back home. 

My cousins (by the way I have relatives in Russia), cannot wear 
their sealskin boots when they come over to visit me. 

I thank the Committee for the draft bill that properly fixes this 
situation. I would like to request further that the law allow impor- 
tation of native handicrafts by tourists who travel into Russia, 
Greenland and Canada. Such importation would be allowed only if 
the other country of visit has a protective law like MMPA in place 
and be consistent with section 11(b) of the Marine Mammal Protec- 
tion Act. 

Alaskan natives and the natives in those other countries have 
few sources of income and the sale of handicrafts is as important 
to them as it is to us. 

As I said when I started, the threat of survival of the marine 
mammals does not and will not come from the native community. 
It will come from those activities and actions of the industrialized 
world. There is currently clear evidence of accumulation of heavy 
metals, PCB's, DDT, and other organic compounds in the organs 
and fat tissues of marine mammals. 

The native people are probably the only people in the world 
where the health authorities and research scientists have rec- 
ommended the continued consumption of contaminated food be- 
cause there are little or no other alternatives. The industrialized 
world is not ready to reduce its emission of pollutants into the en- 
vironment. And we would ask that Congress direct the public 
health and Federal agencies to investigate the levels of contamina- 
tion and the risk to human health. 

I appreciate this opportunity to testify. I would be happy to an- 
swer any questions. Thank you. 

[Statement of Mr. Pungowiyi can be found at the end of the hear- 
ing.] 

Mr. Studds. Thank you very much, sir. Now, as I have said, we 
are going to apply the five-minUte rule to ourselves as well. Dr. 
Tyack, now that we have resolved the problem of the harassment 
of scientists, at least I think we have, I would like to hear a little 



27 

bit more about your observations on the cumulative impacts of 
habitat degradation on marine mammals. As you know, in our own 
State we are dealing with this issue right now as we look at how 
to monitor the potential cumulative effects of disposal of dredge 
materials and discharge of sewage effluent into what are very vital 
feeding grounds for endangered whales. You seem to indicate that 
we should go beyond the normal pollution issues and perhaps even 
beyond our new program which we are going to call swim-with-the- 
lawyers, I think. What should we be thinking about here? 

Dr. Tyack. I do think it demands a new way of thinking. Most 
of the enforcement of the Marine Mammal Protection Act has ex- 
clusively concerned individual takes of animals. There has been re- 
markably little thought put toward the combined effects of all 
human activities on these animals. And that is going to take a re- 
orientation of effort. 

Unfortunately, for chemical and noise pollution, we have such 
profound ignorance, I don't think that it is possible to make good 
regulatory decisions. The Office of Naval Resource has launched an 
ambitious new program to look at the impact of noise on these ani- 
mals. That has not received much public attention but is one of po- 
tential concern. 

Chemical pollution requires an equally concerted effort on the 
part of some Federal agency to bring us answers so that it will be 
possible to make cost and benefit decisions. Right now we simply 
can't say what the impacts to marine mammals are of these heavy 
toxic loads that Mr. Pungowiyi just talked about. 

I think that there are, however, several different issues that are 
much more obvious. The constant threat of vessel collision is obvi- 
ously dangerous to animals, and the primary need here is simply 
enforcement of existing laws. For right whales in the southern Gulf 
of Maine, one of the primary issues to their survival, one of the pri- 
mary habitat degradation issues, is this presence of vessels which 
collide with them and kill so many individuals. This problem has 
not been addressed by the National Marine Fisheries Service. 

Just as important as vessel collision, are the potential effects of 
overfishing of marine mammal prey in reducing the carrying capac- 
ity of the habitat. I think protection against this kind of risk would 
require allocating quotas of food for marine mammals when fishing 
quotas are allocated. This will not be an easy task. But I think that 
if Congress is serious about enhancing the recovery of marine 
mammals, it would do better to decrease the effort on trying to reg- 
ulate every individual take of an animal, even if it is trivial, and 
pay much more attention to targeting the most serious problems 
facing each marine mammal population. For each particular popu- 
lation I don't think that it is an impossible task even now to assess 
which of the following problems are of primary concern: chemical 
pollution, overfishing, entanglement in fishing gear, vessel colli- 
sion, or noise pollution. What is required is a process that demands 
weighing all these impacts. 

Mr. Studds. I don't suppose I should ask you about the impact 
of an eighteen and a half foot vessel commanded by a member of 
this Committee, so I won't. Thank you very much. I hope the air- 
port reopens sometime this fiscal year. The gentleman from New 
Jersey. 



28 

Mr. Saxton. Thank you, Mr. Chairman. I apologize for having 
been out of the room much of the time that you all were giving 
your testimony, but in my opening statement I raised some ques- 
tions and I would just like to ask this question of whoever might 
want to respond. I suspect that Dr. Foster or Ms. Beattie would 
like to respond to these questions. The question has to do with the 
regulations that were proposed last October that had to do with the 
subject of a $10,000 surety bond or whatever other arrangements 
one might make with regard to each animal in the care of a facil- 
ity. It has to do with seemingly extensive review and intricate per- 
mit applications that many people see as unnecessary and over- 
reaching, and it has to do with the industry requirement to pay for 
the government's writing of environmental assessments and envi- 
ronmental impact statements. So I guess I have basically three 
questions. Why are these regulations necessary? In other words, 
justify them. Why are they not overreaching? And how are we 
going to pay for them? 

Dr. Foster. I think I win the lottery this time. Those are the Na- 
tional Marine Fisheries Service's proposed rules. Let us start with 
the idea of the surety bond. First of all I should say that we are 
not bound and determined and wedded to a $10,000 surety bond. 
What we are trying to get at is a problem that we have faced in 
two serious situations, at least, in the past few years and we see 
this as having the potential to happen more often in the future. 
And that is when a facility for one reason or another closes or goes 
bankrupt, what happens to the animals in that facility? Because 
we grant the permit to hold these animals, the public holds us ac- 
countable for what happens to these animals. And in point of fact, 
this is a classic example of one of the differences between the Ani- 
mal Welfare Act and the MMPA. 

When a facility loses a license, then APHIS responsibility goes 
away. And so without the MMPA there would be no care for these 
animals. What we see as a real problem is that we can't think of 
any good reason why the public taxpayer should have to pay for the 
care and transport of these animals while we are working with the 
public display community to find a place for them. 

Our proposal is a way of ensuring that really marginal facilities 
find it more difficult to get the animals but even more important 
than that, that there is some funding to take care of them when 
some facilities fail. We have imposed on friends in the public dis- 
play community; we have imposed on the Marine Mammal Center 
in California at their own expense to take these animals. The New 
England Aquarium incurred a tremendous expense taking animals 
from a facility that went down. 

And that is the rationale behind the idea of the surety bond. 

Mr. Saxton. May I beg your indulgence to interrupt you just so 
that I understand the scope of the problem that you are trying to 
deal with here. Because I really don't. How often is it that one of 
these bankruptcies or going out of business occurs, is it something 
that happens every year, every week, every month, once in a while, 
really often, and thereby what kind of a problem is it really? 

Dr. Foster. I think over the past 4 years we have seen it happen 
twice. But if you happen to be the New England Aquarium, it only 
needs to happen once. We have invoices from that Aquarium that 



29 

totaled something like $100,000 just for this one instance. And I 
think it is important to note that while the Alliance of Marine 
Mammal Parks and Aquariums and the American Association of 
Zoological Parks and Aquariums (AAZPA) do have an arrangement 
where they are in a sense self-regulating (i.e. they have an agree- 
ment that they will take care of each other's animals), you have to 
remember that those two groups, as far as we can tell, cover only 
about 60 percent of the facilities out there that are holding marine 
mammals. That means that 40 percent of the facilities are not cov- 
ered. You would assume that the facilities that are members of 
these two organizations are the best and are not likely to be irre- 
sponsible or in danger of bankruptcy. The 40% who are don't have 
the same backup. 

Mr. Saxton. I realize that I am almost out of time, so let me just 
ask Mr. Jenkins if he would like to comment before I run out of 
time. 

Mr. Jenkins. Congressman, we do not believe that there is any 
need for a surety bond or any similar arrangement to provide for 
these animals. As Dr. Foster indicated, on both occasions it was 
members of the marine mammal public display community that 
stepped in and in a sense if you would, rescued, found new homes 
and transported those animals to those homes at their own ex- 
pense. This is an obligation that we in the Alliance and the AZA 
take very deeply. It is an indication of the animal care and the 
level of commitment that we make to the animals that are in our 
collections. We are prepared to continue doing this in the future. 
Because of that, we do not see any need for a surety bond or any 
similar arrangement. 

Mr. Saxton. Mr. Chairman, may I just to finish, ask anybody 
who may want to respond what the cost of such a surety bond 
might be? I don't know. 

Mr. Studds. Preferably in numbers rather than words. 

Mr. Jenkins. Excuse me, I can find that out, just a minute. Ac- 
cording to a cost analysis that we did on the regulations that were 
published in October, it would cost $500 without collateral. 

Mr. Studds. I thank the gentleman. The gentleman from Alaska. 

Mr. Young. Thank you, Mr. Chairman. I will pursue the ques- 
tion that Mr. Saxton began to ask at a later date, but Mollie, I 
have some questions for you. You mentioned several proposals that 
you are developing that would relate to the marine mammals in 
Alaska. I have a copy of the Marine Mammal bill as prepared by 
the U.S. Fish and Wildlife Service in Alaska which refers to these 
topics. Are these the proposals that you are suggesting? 

Ms. BEATTIE. I don't know what document you have, Congress- 
man. Our proposed amendments have not been finalized out of the 
Department of the Interior. 

Mr. Young. You have not seen anything from the Alaska region 
of the Fish and Wildlife Service? 

Ms. Beattie. No, I have not. 

Mr. YOUNG. Well, someone is not communicating then. Second, 
you state the marine mammal populations in Alaska are healthy, 
you state you want to work with the Alaska natives; you just heard 
Caleb say that you had not communicated with him on your sug- 
gestions. Then you go on to ask for new authority to develop sub- 



79-705 0-94-2 



30 

sistence regulation which is none of your business, before a marine 
mammal stock is declared depleted. If the stocks are in good shape 
and the native community is jointly managing them, there is no 
need for the authority. Why are you asking for new authority to 
regulate subsistence? 

Ms. Beattie. We are not asking for new authority and I was 
reading very fast so let me go over it slowly. We believe that the 
way the law works now is substantially good. It does leave us in 
a position of finding ourselves, if we are headed toward depletion, 
of only having authority to develop regulations once we hit that 
point. We have to go through a formal rulemaking process at that 
point. It may be one or two years past the point the species has 
hit depletion. We are not proposing additional authority. Our pro- 
posal is not to apply the regulations any earlier than they would 
be applied now, but only to have authority to begin to develop 
them. We would of course begin to develop them with the involve- 
ment of native people. A couple of things I did not get to talk about 
because of the time limit were also a proposal we have to increase 
our grants and give grants to native organizations for the study 
and management of marine mammals. And I would hope that those 
kinds of mechanisms, with which we have great success, would 
come into play. 

Mr. YOUNG. Well, my concern is that under your proposal — I am 
reading your — by the way, your answer and your written testimony 
are not exactly the same, so I would suggest you review that very 
closely. Why should Alaskan natives suffer under a minimum six 
years of Federal management if the stock is found to be depleted? 
What gave you the magic number of six years? Where did that 
come from? 

Ms. Beattie. I am not sure where it came from but I think it 
is a time of review and monitoring that people 

Mr. Young. In the meantime, as I said, I don't believe you have 
any business being in subsistence. Period. I want you to know that. 
If I have my way you are not going to be involved in it. But the 
second thing is why do you want to ban the sale of oosicks? 

Ms. Beattie. Ban the sale of oosicks? 

Mr. Young. Yes, do you know what an oosick is? 

Ms. Beattie. Yes, I do. Our proposal is 

Mr. Young. For the audience, this is an oosick. This is an oosick. 
Now, why do you want to ban the sale of this when only 3,000 wal- 
ruses are being taken today, part of the subsistence provision. This 
is part of craft from an animal. You prefer them to throw it away? 

Ms. Beattie. No, sir. We are not proposing the banning of it. The 
question was should these be considered handicrafts if they are not 
worked, if they have not been handcrafted in any way. 

Mr. Young. Well, has this been worked? 

Ms. Beattie. I believe if it has simply been polished, we would 
say no. If it had been carved and otherwise decorated, we would 
say yes. 

Mr. Young. But the difference is — what is wrong with having 
this as part of the subsistence? Do you know of any case where the 
walrus is being killed for the oosick? 



31 

Ms. Beattie. I don't know, Congressman. But what we are say- 
ing is that in order to be considered a handicraft, it should be 
worked. We are not proposing to ban the sale of oosicks. 

Mr. Young. Well, if we put a knob on the end of it, is that con- 
sidered work? 

Ms. Beattie. I don't know technically, sir. 

Mr. Young. See, that is the problem. Now this is a government 
agency, getting involved in something they have no business being 
involved in. This is not being misused. 

Ms. Beattie. Congressman 

Mr. Young. This is the thing I don't get. That is exactly right. 
The only thing you suggest 

Ms. Beattie. May I address your question? 

Mr. Young. You suggest the courts rule — wait a minute — the 
courts have ruled on an issue that can be considered what are na- 
tive handicrafts. The courts have already ruled on this. And why 
are you and the agency — you know, I am hostile, not necessarily to 
you, but the agency. This is an example of the agency stepping out 
of bounds. Why are you trying to overturn the court rulings of what 
are native handicrafts? 

Ms. Beattie. Our interpretation of the court ruling, Congress- 
man, was that the standards in the Marine Mammal Protection Act 
are not clear and are in need of clarification. And that is our in- 
tent. 

Mr. Young. But you lost the case. Did you not? 

Ms. Beattie. Yes, on the basis 

Mr. Young. So you want to change — after the court case you 
want to change it to fit your shoe? 

Ms. Beattie. Congressman, we are saying that we would like to 
clarify something that we believe the court found to be unclear. 

Mr. Young. You want to clarify it in your favor and against the 
natives. And yet you say you want to work with the natives. Be- 
cause that is my problem. You lost the case. You are proposing 
change in the regulations so it fits your situation, not the natives. 
The natives won that case. Is that correct? 

Ms. Beattie. We are just simply preparing to clarify the defini- 
tion of native handicraft, Congressman. 

Mr. Young. And that has already been decided by the courts. 
Mr. Chairman, I suggest respectfully that in this case the courts 
are correct. And last, in your statement, Mollie, you state that the 
polar bear has been taken by aircraft. Now, you have evidence of 
that? 

Ms. Beattie. We have some small evidence. It is not a major 
problem, but we believe that this proposal, which is to restrict the 
hunting of polar bears with aircraft and large motorized vessels, is 
in keeping with the International Polar Bear Agreement. 

Mr. Young. But you don't have any evidence? If you have, you 
should be prosecuting, is that correct? You are talking about sub- 
sistence taking. Now, we are not talking about abandonment or 
poaching, we are talking about subsistence taking? 

Ms. Beattie. That is true. We would, of course, exempt skin 
boats, but we are simply talking about aircraft and large motorized 
vessels. 

Mr. Young. What is a motorized vessel? 



32 

Ms. Beattie. It would be defined by rule that it would be quite 
a large — quite a large motorized vessel. 

Mr. Studds. The gentleman's time has expired. Ms. Beattie 

Mr. Young. Thank you, Mr. Chairman. I would like to rule out 
this oosick later on to find out why you feel this can't be sold, it 
has been manufactured, it has been proven, and by the way, you 
can use it as a weapon. 

Mr. Studds. Did I violate the law when one of your cagey con- 
stituents sold me one of those things the last time I was there? 

Mr. Young. That is what they want to say is violating the law. 
And my point is they killed 3,000 walruses at the maximum for 
subsistence purposes. And to have this proposed by an agency is 
deplorable to me. 

Mr. Studds. Ms. Beattie, you may not believe this but this is one 
of his relatively mellow days. 

Ms. Beattie. Fortunately, it is one of mine too. 

Mr. Studds. It is just as well. 

Mr. Young. Now, if we want to get in a real discussion young 
lady, we will. And if you want to start this, we will. You just re- 
member where I am and where you are. 

Mr. Studds. The usick will go. Oosick, whatever it is. Actually 
it looks more like an oosick in your hands. The gentleman from 
California is next. 

Mr. Cunningham. Thank you, Mr. Chairman. And I would like 
to say to Mr. Pungowiyi, although you read your words I know they 
came from your heart, and I understand the emotion. And in clar- 
ity of time I would like to submit most of mine for the record, Mr. 
Chairman. 

[Statement of Mr. Cunningham follows:] 

Statement of Hon. Randy "Duke" Cunningham, a U.S. Representative from 

California 

I would like to thank Chairman Studds for holding this important hearing on the 
reauthorization of the Marine Mammal Protection Act (MMPA). 

Since the MMPA was enacted in 1972, it has served to protect various marine 
mammal populations in the wild from various human threats. The Act also safe- 
guards marine mammals by managing human activities affecting them and their 
natural habitat. 

Through the years, however, much confusion has developed over what role each 
agency should play. Most recently, this confusion was demonstrated in October 
when the National Marine Fisheries Service issued their proposed permit regula- 
tions. I believe that in the future this ambiguity will certainly lead to more conflict- 
ing standards and law suits. 

It is my understanding that the intent of the MMPA was to protect marine mam- 
mals that lived in the wild, and that the National Marine Fisheries Service and the 
U.S. Fish and Wildlife Service are responsible for its enforcement. It was also my 
understanding that the Animal Welfare Act, enforced by the Department of Agri- 
culture's Animal and Plant Health Inspection Service, regulates the care and main- 
tenance of marine mammals in zoological facilities. 

Mr. Chairman, as we discuss the issue of public display, it is imperative that we 
make this less of a "regulatory mess". As a Member from San Diego, I am proud 
to have both Sea World and the San Diego Zoo close to me, and the San Diego Wild 
Animal Park in my district. 

This Committee should note the important role played by zoos and aquariums. 
These zoological institutions have spent $20 million on research over the past 5 
years alone. This research, performed at no expense to the Federal Government, 
benefits marine mammals in the wild and in captivity. These same institutions have 
spent over $5 million since 1987 rescuing and rehabilitating stranded marine mam- 
mals — again at no cost to the Federal Government. 



33 

It is important to keep in mind the benefits derived from the zoological commu- 
nity's education, researcn, rescue, rehabilitation, and care and maintenance efforts 
to protect marine mammals and their habitat. The great service that the zoological 
community provides in these areas should be recognized and should not be discour- 
aged by unnecessary and burdensome regulations. Such a burden could result in a 
decision by the scientific and zoological community to scale back research and res- 
cue efforts, thus requiring additional resources from the Federal Government. 

Mr. Chairman, as we learn more about marine mammals both in the wild and 
in captivity, let's be sure to strengthen Congress' original intent that the National 
Marine Fisheries Service has ana should maintain the authority to issue permits 
for "takes" from the wild and for the importation of marine mammals or marine 
mammal parts from the wild and for the importation of marine mammals or marine 
mammal parts from a foreign country. The term "take" should be explicitly clarified 
to include only activities in the wild or affecting a marine mammal s natural habi- 
tat. 

Again, thank you for holding this hearing today. I look forward to working with 
you on this important issue. 

Mr. Cunningham. But Dr. Foster, you stated you worked for over 
20 years with the other regulatory agencies. Mr. Jenkins and oth- 
ers object to the intrusion and request that this Committee clarifies 
the lines of jurisdiction. And I know whether it is Republican or 
Democrat or CIA or FBI or Border Patrol or INS, there is always 
a struggle for power and dominance within different organizations. 
And I think in any of those instances and this one too where that 
thrust for power or control is detrimental to what we want to do 
in especially the Marine Mammal Protection Act, I think that is 
where we need to step in and separate the pepper. 

I used to date a young lady that worked at Sea World. Unfortu- 
nately, she was more interested in the animals than she was in me 
and she phased me out. But during that timeframe, I know the 
care and the love, I know the veterinarians, I talked to some other 
members up in the Seattle area, I know the care and the love that 
these animals get and I understand, you know, some of the prob- 
lems. 

But I think, and I would hope with the Chairman and this Com- 
mittee that we can look at some kind of compromise in this thing 
because what we are all interested in, I think, is the protection of 
these animals. I was going to ask you the questions about the 
amount of $500, is that per animal or is that total? 

Mr. Jenkins. That is per animal, per activity, such as a trans- 
port. Every time we would move an animal, for example, within the 
context of our breeding loan agreements, we would have to put up 
a surety bond for the transport of that animal. 

Mr. Cunningham. OK. It seems that it is the private industry 
that provides, like you said when you had your problems, they 
come in and step in, they feel a responsibility. But maybe even all 
of those groups together across the United States and this Commit- 
tee could look into it, Mr. Chairman, as forming some kind of alli- 
ance to where the actual industry doesn't have to take care of it 
themselves, but maybe an alliance would have a way to provide 
funds, you know, to take care of these problems and step in. And 
I would hope in a responsible way that this is the way the agencies 
would step forward and do this. But I know the value — this Satur- 
day we have an event called Game 24, which kids in an education 
program are having at Sea World, in our zoo in San Diego and if 
I was a critter I would rather be there than out in the open ocean 
because of the care and love that they get there. I thank all the 



34 

participants and I thank Mr. Pungowiyi, you touched my heart 
with your testimony and hopefully we can take care of some of 
these problems. Thank you and thank you, Mr. Chairman. 

Mr. Studds. Say to the gentleman we are all critters. Important 
to remember. 

Mr. Cunningham. Only these Republicans, Mr. Chairman. 

Mr. Studds. I repeat. It may also reassure the gentleman that 
it is our intention and the fashion of this Committee to try to re- 
solve these matters by compromise and I am very hopeful that we 
can. The gentleman from Maryland. 

Mr. Gilchrest. Thank you, Mr. Chairman. I would just like to 
quickly make a comment to public displays, the Baltimore Aquar- 
ium and other aquariums around the country. I am not familiar 
with other aquariums around the country, but in my estimation 
after visiting the aquarium in Baltimore, it is a beautiful research 
facility that allows the people of this mid-Atlantic region to under- 
stand the importance of conservation and where we fit in with 
other life forms on this planet. So however this bill — however it 
moves through this Committee, and however we shape and form it 
and decide on the final draft, I would like to make a comment that 
the facility in Baltimore, and I am sure there are other facilities 
around the country, offer the average individual an opportunity to 
understand the absolute essential importance of where we fit in 
with the rest of the life on the planet. And so, Mr. Jenkins, I will 
work very diligently with this Committee to ensure that your facil- 
ity continues to do what it does. 

I would like to ask some other questions, mainly related to this 
oosick. I didn't know what an oosick was — it looks like quite an 
amazing thing. I am not sure how to pronounce everybody's name 
but 

Mr. Cunningham. That is an assault oosick. 

Mr. Gilchrest. Well, it might be a semi-assault oosick. It is hard 
to tell. There have been a lot of words exchanged here between dif- 
ferent groups of people and agencies on the part of — it seems to me, 
sitting here in an observation mode that just about everybody in 
this room is talking about the same thing. Whether it is Fish and 
Wildlife trying to preserve the number of walruses that carry these 
oosicks or whether it is the indigenous proud people of the north- 
ern regions of Alaska, Russia and Canada, trying to preserve their 
dignity and integrity by pursuing a responsible lifestyle. 

And if we could understand that I am sure the gentleman from 
Alaska would not want to see the walruses become endangered or 
extinct, and that they have lived with walruses and polar bears 
and other species for 10,000 years, so their relationship is firmly 
set in tradition. 

I would hope that we can pass some fashion regulation that will 
not create controversy between this government and the peoples of 
Alaska, but create an opportunity so that we can see that there is 
room for flexibility and room to work. 

I would like to ask, and I truly apologize Mr.? 

Mr. Pungowiyi. Pungowiyi. 

Mr. Gilchrest. Pungowiyi. Mr. Pungowiyi. Who buys these 
things? When you catch a walrus and you are going to sell some- 
thing like this, who would buy it and what is your difference of 



35 

opinion with Ms. Beattie as to why this thing should be carved a 
little bit so it looks like it has been fashioned? Is there a disagree- 
ment with that and why? 

Mr. Pungowiyi. Well, the people that buy them, people who are 
curious, you know, about the walrus oosick (mostly it is tourists 
who come up to Alaska). Also the handcrafted ones are the ones 
where you carve out of ivory either a walrus head or a polar bear 
head and attach it to one end of the oosick and then on the other 
end is the flippers or some other ornament, you know, in essence 
that makes it look attractive. I think that the Fish and Wildlife, 
if I understand their proposed amendment, indicates that they 
were more concerned about the sale of male organs and gall- 
bladders in an unfinished raw form that would be used for 
aphrodisiacs in the Asian countries. 

Mr. GlLCHREST. Do you have a concern that — do you understand 
that they want to preserve the walruses? 

Mr. Pungowiyi. That is correct. 

Mr. GlLCHREST. And do you have some concern yourself about 
those particular body parts as far as somewhere down the line 
someone abusing, let us say some Asian countries coming in and 
having a big market for types of body parts. Is that a potential 
problem? 

Mr. Pungowiyi. If it was something that would come to our at- 
tention, it would be something that we bring to the attention of 
Fish and Wildlife. We have worked with them in terms of, if we 
feel that there is an illegal activity that is of concern to the native 
community, we will bring it to their attention. And as I mentioned, 
the Act is very restrictive in terms of how it treats the Alaskan na- 
tives, and what we can do and how we can do it with the products. 
And I think that the Fish and Wildlife anticipates or envisions a 
problem that is nonexistent. And they have not, and we have not — 
it is my opinion or my knowledge, there has been no activity that 
has surfaced concerning either the sale of oosicks in an unrefined 
form or sale of gallbladders to the Asian countries. And, you know, 
if they were concerned, I would assume that they would approach 
us and tell us hey, we see this as something that is a potential 
problem, let us work it out. That has not occurred. This is the first 
time we heard today that they feel that there is a concern on sale 
of gallbladders and male reproductive organs. 

Mr. GlLCHREST. Could Ms. Beattie just respond briefly? 

Ms. Beattie. I can respond that we are really trying, once again, 
to clarify the definition of edible portion in the law as it is now, 
and trying to stop what we believe is beginning to be a substantial 
black market in these products for the Asian market. All it does 
is try to define essentially edible portions as those traditionally 
consumed by native peoples, and take out this sort of burgeoning 
interest in gallbladders, which I am sure most of you have been 
reading about, in the Asian market. 

Mr. GlLCHREST. It seems that the gentleman from Alaska wants 
to preserve the integrity of his people and their rights, but I am 
sure he would also agree he wants to work with the Fish and Wild- 
life to prevent a black market from occurring. 

Ms. Beattie. And we would agree to that too. 



36 

Mr. Gilchrest. I guess communication is the art of success and 
thank you for your testimony. 
Ms. Beattie. Thank you. 
[The statement of Mr. Gilchrest follows:] 

Statement of Hon. Wayne T. Gilchrest, a U.S. Representative from 

Maryland 

I wish to commend the Chairman for calling this hearing and welcome this oppor- 
tunity to hear the testimony today. 

The Marine Mammal Protection Act is the world's premiere legislation, protecting 
marine mammals and their natural habitats. I am confident that the Act will re- 
ceive the continued support of this Committee that it so deserves. 

When the Act was first passed, we granted a special, favored status to zoological 
institutions that display marine mammals to the public in recognition of their im- 
portant role in educating the public, a vital goal of the Act. A similar status was 
granted to those engaged in scientific research on marine mammals in recognition 
of their contributions to marine mammal science and conservation. The importance 
that public display and scientific research have made in furthering the purposes and 
goals of the Act cannot be underestimated. A facility located in my own State serves 
as an excellent example of the vital role that these institutions play in supporting 
the Act, and the life and development of their communities and States. 

The National Aquarium in Baltimore is a world-class aquatic facility. Its primary 
goal, as expressed in its mission statement, is to create in every visitor an attitude 
of respect for the environment and the ecological balance of life. This is accom- 
plished by providing quality educational and recreational experiences at all levels 
that adhere to the highest principles of animal care, conservation and scientific re- 
search. The Aquarium is Maryland's most popular cultural attraction, enjoying an 
average visitation of over 1.5 million visitors each year since its opening in 1981. 

Showcasing the majesty of all marine mammals, the Aquarium opened its Marine 
Mammal Pavilion in 1990. The 94,000 square foot, $35 million Pavilion combines 
live and participatory exhibitry to tell the real story of marine mammals around the 
world. From the life-sized model of an actual humpback whale to the interactive ex- 
hibits in Exploration Station, visitors learn in meaningful, lasting ways about wild 
marine mammals, their unique adaptations to life in the water, and the current 
threats to their existence. 

The centerpiece of the Pavilion is the Lyn Meyerhoff Amphitheater encompassing 
the dolphin faculty. This is a 1.2 million-gallon environment housing Atlantic 
bottlenose dolphins. Surrounding the environment are the world's largest acrylic 
windows providing visitors with an unprecedented look into the world of the dol- 
phin. Public presentations focus on marine mammal adaptations and life beneath 
the waves. Specially produced video and animation displayed on two, large tech- 
nically advanced screens, punctuates the demonstrations with intimate footage of 
wild marine mammals and their unique characteristics. These presentations are ac- 
centuated with a strong conservation message focusing on the need to protect both 
the aquatic environment and the marine mammals that live there. 

To fulfill its goal to provide a quality educational experience, the Aquarium main- 
tains a large Education and Interpretation Department with a professional staff ex- 
perienced in the areas of public programs, curriculum development, resource mate- 
rials, administration and grants, and professional communications. Educational 
services are provided to the general public, Aquarium members and the tens of 
thousands of school children who enter its doors each year. They are also offered 
directly to individuals and organizations with local, national and international law. 
In 1991 alone, over 254,000 individuals at all levels, including outreach and training 
programs, participated in specific educational programs. In 1993, a record 157,000 
school children visited the Aquarium with many participating in formal classroom 
experiences. Some of these programs focused specifically on marine mammals and 
their unique roles in the aquatic environment. Additionally, over 2,000 teachers par- 
ticipated in aquarium teacher orientation, workshops and other teacher training 
programs, who then took their new and expanded skills back to their classrooms. 

As with the other members of its living collections, the Aquarium provides the 
marine mammals in its trust with the very best in husbandry, nutrition, medical, 
and environmental care. The high level of care by the professional staff is evidenced 
by the successful births of two bottlenose dolphins one year after opening the facil- 
ity. Both calves will celebrate their second birthday in one month. The Aquarium 
also has second-generation captive-born harbor seals in its seal colony. The Aquar- 
ium is an active member of the AZA Marine Mammal Taxonomic Advisory Group 



37 

and participants in the breeding programs for harbor seals, bottlenose dolphins and 
beluga whales. 

Basic and applied scientific research bolsters the animal care and husbandry pro- 
grams of the Aquarium. Studies have been conducted on the anatomy of sea otters, 
ocular segment disease in wild fur seals, the vocal behavior of beluga whales, the 
chemical composition of dolphin tear secretions, and the circulating levels of hor- 
mones in beluga whales. Scientists working with the Aquarium have authored near- 
ly 100 peer-reviewed studies since its opening in 1981. These studies have applica- 
tion both to captive and wild populations, and to marine mammal rehabilitation pro- 
grams. 

The Aquarium is an active member of the Northeast Region Marine Mammal 
Stranding Network and is responsible for coordinating the rescue and care of 
stranded marine mammals and sea turtles in the coastal areas of Virginia, Mary- 
land, and Delaware. Aquarium Stranding Network workers respond to calls 24 
hours a day to care for sick or injured wild animals. Assisting the professional 
Aquarium medical staff are specially-trained paid and volunteer Aquarium staff 
members. Collection of valuable data is one of the additional benefits of the Strand- 
ing Network. 

This program is funded entirely through public donations and the operating reve- 
nues of the Aquarium. The costs of the program can be significant. For example, 
the attempted rehabilitation of a juvenile pilot whale in 1992 required the use of 
over $47,000 in Aquarium resources. Currently, the Aquarium annually expends 
over $100,000 in combined resources towards the rehabilitation of wild animals res- 
cued through the Network. As I speak, they are rehabilitating a dwarf sperm whale 
that was stranded iust before Thanksgiving of last year. I note that significant 
amounts of plastic debris were found in the whale's stomach. As involvement and 
public awareness expands, greater demands will be placed on the Network, thus the 
dedication of additional resources will similarly increase. 

Mr. Chairman, I note that the Aquarium is but one of the many institutions 
throughout our nation that are involved in this important work. I believe that we 
need to ensure that their efforts, which are dedicated to the conservation of marine 
mammals and their habitats, are recognized in the reauthorization of the Marine 
Mammal Protection Act for it to be truly effective. 

Thank you again, Mr. Chairman, for calling this hearing and providing me with 
an opportunity to say a few words. 

Mr. Studds. I thank our minority philosopher poet. The gen- 
tleman from New Jersey. 

Mr. Pallone. Thank you, Mr. Chairman. I noticed in the written 
statements of Mr. Reynolds, he mentioned that there is no mecha- 
nism to expedite permit issuance when necessary to protect or oth- 
erwise benefit a species population or individual marine mammal 
which is in jeopardy. And also I guess it was in Dr. Tyack's state- 
ment he talked about a situation in Cape Cod with whales where 
the NMFS was required to obtain permits to take the whales by 
harassment and NMFS took a year to issue the permit and if the 
scientists had not continued to rescue the whales illegally during 
this year, whales might have died. 

I am not sure if this relates directly to my situation in New Jer- 
sey, it may very well. Because I am not sure that the permit was 
the issue, but we had a situation I guess a month or so ago where 
we were trying to basically rescue dolphins in the Shrewsbury 
River which is in my district, that had been caught in the ice. In 
other words, I think it was at the end of December, I forget exactly 
the date, and all of a sudden the waters froze very quickly and the 
dolphins basically were not able to get out of the river. And re- 
quests were made from the Marine Mammal Stranding Center 
(Bob Schoelkopf); I think the stranding center is actually in Mr. 
Saxton's district. Where they wanted permission essentially to use 
certain nets to rescue the dolphins and take them out of the river 
and NMFS would not allow that because apparently they had some 
sort of a policy that said that if there was some way possible for 



38 

the animals to leave, you know, that they were not going to inter- 
fere with their movements. 

I don't want to get into the specific configuration of the area, but 
basically the dolphins were trying to — it seemed that the dolphins 
were trying to swim south and the only way to get out was to swim 
north and there was reason to believe that they were not able to 
get out. 

The reason I mention it is because the Marine Mammal Strand- 
ing Center, well actually what happened is that the ice froze again 
and we don't really know what happened to the dolphins, whether 
they died or they managed to swim out or whatever. But it caused 
a lot of concern over I guess the bureaucracy of getting this permis- 
sion from NMFS, which may have been a permit or not and may 
have related to what Mr. Reynolds said, I am not sure. But it cer- 
tainly sounds like it to me. 

What the locals are saying, what Mr. Schoelkopf and the Marine 
Mammal Stranding Center is saying is that they would really like 
the policy changed so that more input could come from local people, 
those who are on the scene at the time, because they felt very 
strongly that these animals were in danger and that it was proper, 
appropriate action to take them out and they felt that they were 
hindered by NMFS's policy. 

What I would like to do with the permission of the Chairman is 
to — I know we have already sent some letters on this, but perhaps 
give you more details about it, but I guess I wanted to ask either 
Mr. Reynolds or Dr. Tyack or whoever to respond to this and 
whether this actually relates to the permit concerns that you raised 
in your testimony. 

Dr. Reynolds. I will take a stab at it first. Before I make some 
general comments, I would note that I am not familiar with the 
specifics of the situation you described, but the problem is that 
there are instances where fast action is needed in order to preserve 
individual animals or populations or potentially species. Right now, 
there is no mechanism now to get around the 30-day comment pe- 
riod. And we would agree with you and recommend that procedures 
be changed to allow emergency responses to this sort of situation. 

There have been other situations where lack of ability to respond 
quickly has been a problem, and I will give you one example. Back 
in the early eighties there was a die off of monk seals on Laysan 
Island. Hawaiian monk seals are an endangered species. At that 
time, there were no biomedical data, no clinical data available on 
monk seals, and so there was an attempt to get a permit quickly 
or to waive the permitting process in order to sacrifice an animal 
to get normal blood values so you could assess what is pathological. 
This would allow you to start to make a determination on why 
members of this endangered species were dying off. And it wasn't 
possible to do that. 

And so, again, without knowing the specifics of your situation, I 
would say that it might fall into this category. I would be inter- 
ested in learning more about it, but clearly there are times when 
the health of animals is in jeopardy and it would nice to be able 
to act very quickly. 

Mr. Pallone. Well, perhaps what I could do, with the permission 
of the Chairman, is send you some information on it and perhaps 



39 

we could sit down and talk about what could be done to change the 
regs or the policy, because it sounds almost exactly like what hap- 
pened in Cape Cod to me and we really don't know whether or not 
the animals were saved or if they actually died because of the frost. 
Thank you. 

Mr. Reynolds. We would be happy to sit down and talk with 
you. 

Mr. Studds. Thank you. I want to thank all of the panel. I would 
like to reassure the members that the phrase "public display com- 
munity" does not refer to this institution. It bothers me a lot when 
I hear that. It has been a fascinating morning. I apologize for the 
interruption and I appreciate your patience and in some cases your 
endurance, to say nothing of your mellowness, and we will stand — 
we look forward to working with you all. I am very hopeful we can 
work this out. The Subcommittee stands adjourned. 

[Whereupon, at 12:32 p.m., the Subcommittee was adjourned, 
and the following was submitted for the record:! 



40 



STATEMENT OF 

NANCY FOSTER 

DEPUTY ASSISTANT ADMINISTRATOR FOR FISHERIES 

NATIONAL MARINE FISHERIES SERVICE 

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION 

U.S. DEPARTMENT OF COMMERCE 

BEFORE THE 

SUBCOMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES 

COMMITTEE ON MERCHANT MARINE AND FISHERIES 

U.S. HOUSE OF REPRESENTATIVES 

FEBRUARY 10, 1994 

Mr. Chairman and Members of the Subcommittee: I am Dr. Nancy 
Foster, Deputy Assistant Administrator for Fisheries, National 
Oceanic and Atmospheric Administration (NOAA) , U.S. Department of 
Commerce. I appreciate the opportunity to testify before this 
Subcommittee . 



Last year you held a hearing on interactions between marine 
mammals and commercial fishing under the Marine Mammal Protection 
Act (MMPA) . Today our testimony addresses other aspects of the 
Act, including permits for purposes of public display, scientific 
research, and enhancement. 

Over twenty years ago, Congress declared that marine mammals 
merited special protection and passed a landmark piece of 
legislation for this purpose, the MMPA. During the last twenty 
years, we have been careful to administer this important law 
consistent with its policies and objectives. The MMPA not only 
declares a strong public interest in the protection and humane 
treatment of all marine mammals, both those found in the wild and 



41 



in captivity, but it also declares a public interest in the 
conduct of certain activities that involve these marine mammals, 
such as scientific research and public display. As with many 
laws that protect our Nation's natural resources, the MMPA 
attempts to balance these sometimes conflicting public interests. 
Consistent with these mandates, we have worked hard to carry out 
this balancing act while, at the same time, keeping to a minimum 
the administrative burden on the businesses and individuals whose 
activities are regulated. 

In 1988, Congress enacted amendments to the MMPA that affected 
public display and scientific research permits. At about the 
same time, the National Marine Fisheries Service (NMFS) 
recognized that, in response to persistent problems under the 
current regulatory regime and to address the many issues and 
questions of approximately 17 years of permit administration, an 
in-depth review of our permit program was necessary. This 
comprehensive and lengthy review of the permit program for 
scientific research and public display included extensive 
involvement by all interested parties. The review has resulted 
in a number of administrative improvements, many of which we have 
already begun to implement. 

In addition, we proposed a rule to revise permit regulations on 
October 14, 1993. These revised permit regulations address 
comprehensively the many issues and problems that were examined 



42 



during the review. The comment period for these proposed 
regulations closed on January 28, 1994. We received well over 
150 comment letters representing a wide range of views. 

While a thorough analysis of these comments will take some time, 
several recurring themes are clear and reflect the many strongly 
held and widely divergent opinions of various groups and 
interests, some of which are represented at this hearing today. 
Many of these issues concerning marine mammal public display and 
scientific research have become increasingly controversial, 
particularly in the last ten years. This Committee and Congress 
addressed several of these issues in the 1988 amendments to the 
law; including requiring education or conservation programs, 
public access, and regularly scheduled hours for the public 
display of captive marine mammals. And, these same 1988 
amendments also required that scientific research involving 
marine mammals must be bona fide, avoid unnecessary duplication, 
and involve lethal methods only where there is no alternative. 
Today, several public display and scientific research issues are 
again before this Committee in an even more intense and 
fundamental manner . 

I believe it would be most helpful to this Committee if I address 
briefly a few of the issues that have arisen in the last several 
months in response to the proposed revised permit regulations and 
recent litigation. I expect these issues to be the focus of 



43 



today's testimony and this Committee's review of permit issues. 
These issues fall into two broad categories.- first, whether the 
MMPA protects captive marine mammals, and second, what and how 
activities involving marine mammals in the wild should be 
regulated, particularly scientific research activities. 

Captive Marine Mammals 

Representatives of segments of the public display community 
believe there is duplication among Federal agencies where captive 
marine mammals are concerned. And, as a result, these groups are 
asking this Committee to consider amending the MMPA to address 
their concern. As I will explain in greater detail later in this 
testimony, we do not agree that such duplication exists among 
Federal agencies concerning captive marine mammals; and we 
believe that such an amendment is unnecessary. If such an 
amendment is nonetheless the decision of this Committee and 
Congress, unless carefully crafted, it would put at risk the 
special protection provided captive marine mammals under the MMPA 
and could itself create duplication of responsibilities or, at a 
minimum, require additional funding and resources for 
implementation. 

In a related matter, The Mirage, a recent public display permit 
holding casino- resort in Las Vegas, filed a lawsuit in September 
1992 in Federal District Court in Nevada. The Mirage wished to 



44 



begin conducting a swim-with-the-dolphins program similar to four 
existing experimental programs . NMFS denied this request by The 
Mirage, as we had several other such requests, explaining that, 
until a study was completed on the effects of such swim-with 
programs on the dolphins, no additional such programs would be 
authorized. The Mirage then filed a lawsuit to overturn this 
decision by NMFS. As one of several counts in its lawsuit, The 
Mirage challenged whether the MMPA applies to captive marine 
mammals at all. 

On November 24, 1993, the District Court judge decided this case 
in favor of The Mirage, ruling that the MMPA does not apply to 
captive marine mammals. Although the decision interpreted the 
statute, the parties and the court agreed that this decision 
applies only to The Mirage pending the outcome of an appeal. 
Although the ruling allows The Mirage to conduct a swim-with 
program before completion of the study, The Mirage has agreed in 
the interim to abide by most of the conditions contained in the 
permits of the four experimental swim-with-the-dolphins programs 
that are a part of the study. The Department of Commerce has 
asked the Justice Department to appeal this District Court 
ruling. 

Now, following this lawsuit by The Mirage, and more than twenty 
years after enactment of the MMPA, the issue is being raised as 



45 



to whether or not the MMPA applies to those marine mammals held 
in public display facilities. 

We believe the current law most certainly does apply. NMFS 
through the MMPA, and the Animal and Plant Health Inspection 
Service (APHIS) through the Animal Welfare Act, both assert 
jurisdiction over captive marine mammals, but with different 
emphasis and under different conditions. The protection for 
marine mammals under these laws is complementary, not 
duplicative. It is important that the responsible Federal 
agencies work closely together to avoid duplication and ensure 
that actions are coordinated and limited agency resources are 
used in the most effective and efficient manner practicable, 
while providing the best possible protection for marine mammals. 
We believe, as does APHIS, that our interagency agreement is 
working well and provides an appropriate mechanism for resolving 
any issues that arise concerning our respective roles in 
protecting marine mammals . 

A few facts and some background will help to illustrate how 
Federal efforts are currently being coordinated. Under the 
existing MMPA, all marine mammals, both wild and captive, have 
been declared by Congress as worthy of special protection. It is 
within this context that NMFS and the U.S. Fish and Wildlife 
Service administer the permit provisions of this law. APHIS 



46 



administers the Animal Welfare Act as it applies to many kinds of 
animals, including marine mammals. 

We work closely with APHIS. When we review an application for a 
public display permit, in addition to considering the public 
display- specific requirements of the MMPA, we ask APHIS to review 
and comment on the application, considering the results of their 
most recent routine inspection of the applicant's facility, or, 
if the facility is new, to conduct an inspection. In this 
manner, we rely on APHIS assurances that applicable care and 
maintenance standards for marine mammals are met by the applicant 
before issuing a permit. Then, as a condition of the public 
display permit, NMFS requires the permitted facility to adhere to 
these care and maintenance standards . 

Other terms and conditions of the permit incorporate public 
display-specific requirements of the MMPA, provide a mechanism 
for tracking the marine mammals held by the facility, and meet 
other requirements of the law applicable to captive marine 
mammals. We routinely work with APHIS in investigating 
complaints regarding the humane care and treatment of captive 
marine mammals. We recently reviewed our working relationship 
with APHIS and both agencies concluded that we are working 
together well and our long-standing interagency agreement for 
this purpose remains effective. 



47 



As background, after enactment of the MMPA in 1972 and until 
1979, NMFS included detailed terms and conditions for the care 
and maintenance of captive marine mammals in all public display 
permits. During this seven year period, captive care standards 
for marine mammals were applied and enforced solely by NMFS and 
the Fish and Wildlife Service under the authority of the MMPA; 
there were no such standards in existence under the Animal 
Welfare Act. 

In 1979, several steps were taken to avoid duplication. APHIS, 
recognizing the unique captive care and maintenance needs of 
marine mammals, and after consultation with the Marine Mammal 
Commission, NMFS, and the Fish and Wildlife Service, promulgated 
for the first time marine mammal standards under the Animal 
Welfare Act. Additionally, NMFS and the Fish and Wildlife 
Service signed an interagency agreement with APHIS to avoid 
duplication and share available resources. Finally, to avoid 
such duplication, NMFS then amended all public display permits to 
reference these care and maintenance standards issued by APHIS. 

The 1993 revisions in our October permit regulations continue to 
apply these fifteen-year-old care and maintenance standards to 
permits issued under the MMPA. 

With its field inspection staff, APHIS was and continues to be in 
the best position to conduct routine inspections of facilities. 

8 



48 



We believe that this cooperative interagency approach will not 
require additional resources by either NMFS or APHIS to carry out 
our respective responsibilities concerning captive marine 
mammals . 

During our permit program review, many serious questions were 
raised regarding the adequacy of these now fifteen-year-old 
marine mammal care standards. To address these concerns, APHIS 
has agreed to initiate a review of the standards in cooperation 
with NMFS, the Marine Mammal Commission, and the Fish and 
Wildlife Service. These are the agencies with the most knowledge 
of marine mammal behavior, physiology and population dynamics. 
It remains our position that in the unlikely event the revised 
APHIS standards under the Animal Welfare Act do not reflect the 
special status and protection afforded marine mammals under the 
MMPA, only then might it become necessary to supplement, but not 
duplicate, such existing standards. 

We believe that both the spirit and letter of the existing MMPA 
confer jurisdiction over captive marine mammals. However, we 
agree that, since a question has arisen as to whether the MMPA 
applies to captive marine mammals, this issue is too important to 
leave any doubt as to the intent of Congress. We agree that the 
question should be dealt with directly and that the intent of the 
law should be clear. 



49 



This Committee and Congress may reaffirm that the MMPA does 
protect captive marine mammals; either retaining that authority 
with the Secretary of Commerce and NMFS or assigning entirely the 
jurisdiction and responsibility for captive marine mammals under 
the MMPA to a different Federal agency, such as the Secretary of 
Agriculture and APHIS. Or, this Committee and Congress may 
decide that the MMPA applies only to marine mammals in the wild 
and not to captive marine mammals. Importantly, we request in 
the strongest terms that any considered amendments be drafted in 
the clearest possible manner. At a time when public controversy 
and criticism concerning captive marine mammals continues to 
increase, it is critical that the regulated communities and the 
public understand which laws apply and what agency or agencies of 
the Federal government are responsible for oversight of captive 
marine mammals, in what capacity and to what degree. 

It is our position that, if this Committee and Congress reaffirm 
that captive marine mammals are protected by the MMPA, the 
Secretaries of Commerce and the Interior, in consultation with 
the Marine Mammal Commission, have the most relevant expertise 
regarding the issuance of permits for activities involving such 
marine mammals. These same agencies can best ensure that this 
law is implemented consistent with the intent of Congress. 

If, however, this Committee and Congress decide to amend the MMPA 
to assign jurisdiction and responsibility for captive marine 

10 



50 



mammals to the Secretary of Agriculture and APHIS, then it is 
particularly important that this amendment assign all 
responsibility for captive marine mammals to APHIS in the 
clearest possible terms. In the event Congress decides to take 
this approach, the Department of Agriculture should be consulted 
as to their willingness and capability to assume these 
responsibilities . 

First, the law needs to clearly state whether captive marine 
mammals are afforded the special protection of the MMPA, or if, 
while held captive, they are subject only to the jurisdiction of 
the Animal Welfare Act. If the former is true, then 
responsibility must be clearly assigned for oversight of all 
MMPA-mandated activities involving these animals, including 
public display requirements for acceptable education and 
conservation programs and public access, and requirements for 
scientific research and enhancement specific to captive marine 
mammals. Other responsibilities that would need to be explicitly 
assigned under such circumstances include the tracking and 
monitoring of captive marine mammals, including the development 
and maintenance of a comprehensive marine mammal inventory 
database; the development and implementation of standards for 
"interactive" programs, including swim-with-the-dolphins programs 
and captive feeding programs; and addressing the many marine 
mammal -specific captive maintenance concerns addressed in our 
proposed revised permit regulations. 

11 



51 



Before I leave captive display questions and move on to the 
important issues affecting marine mammals in the wild, I would 
like to give just one example of the variety of complex problems 
that must be dealt with in deciding this jurisdictional issue. 
The problem to be examined is responsibility for the care and 
maintenance of abandoned maine mammals held in captivity for 
public display. The following brief, but illustrative, example 
is an incident that occurred just over a year ago in which 13 
harbor seals and California sea lions held at the Cape Cod 
Aquarium were essentially abandoned. A few months before the 
incident, the Cape Cod Aquarium was issued a public display 
permit after several months of addressing significant concerns 
raised by NMFS . Many of these concerns arose from a succession 
of complaints and allegations by the public of substandard care 
and other problems at the Cape Cod Aquarium. Prior to the 
abandonment of these captive marine mammals, the Cape Cod 
Aquarium was repeatedly found by APHIS to be in compliance with 
applicable care and maintenance standards under the Animal 
Welfare Act. Following the abandonment of these marine mammals 
and closing of this public display facility to the public, APHIS 
explained that they no longer had jurisdiction over these marine 
mammals under the Animal Welfare Act because the animals had been 
removed from public exhibit; leaving only MMPA protection under 
our jurisdiction. Consistent with a pre-existing verbal 
agreement between the Cape Cod Aquarium and the New England 
Aquarium to care for these animals in an emergency, under the 

12 



52 



MMPA we authorized the New England Aquarium to assume custody and 
responsibility for the care and maintenance of these abandoned 
marine mammals. Although this willingness on the part of the New 
England Aquarium to assume custody of these marine mammals 
addressed the immediate problem of their care and maintenance, 
the much more difficult problem was their placement at other 
acceptable facilities and the cost in both space and time of 
their care until such placement could be arranged. 

Although these sea lions and harbor seals were eventually placed 
at other facilities, it took several months of dedicated effort 
by our Regional staff, the staff of the New England Aquarium, and 
our permits office to find facilities willing to accept them -- 
during the last stages of this effort the American Association of 
Zoos and Aquariums and the Alliance of Marine Mammal Parks and 
Aquariums also assisted in this several month effort to identify 
facilities that would be willing to accept custody of these 
animals. The New England Aquarium incurred over $100,000 in 
personnel and captive maintenance costs in the care and transport 
of these abandoned animals. We are aware of the extent of these 
costs because, even though there have never been Federal 
appropriations to cover such costs, we received invoices from the 
New England Aquarium itemizing their expenses . 

This is only one of several instances that point out one of the 
more significant growing problems of the public display industry 

13 



53 



-- the need to care for and place abandoned or otherwise unwanted 
marine mammals, especially pinnipeds. Although this problem is 
likely to occur only in the most marginal of facilities, it is 
nonetheless a potential problem for all public display 
facilities; as the Cape Cod incident clearly illustrates. In our 
proposed revised permit regulations we propose a method for 
beginning to address this problem. These proposed regulations 
provide for, and we would much prefer, industry self -regulation 
and pre -placement planning on this issue. However, only 
60 percent of public display facilities are members of either the 
American Association of Zoos and Aquariums or the Alliance of 
Marine Mammal Parks and Aquariums. And, even if these groups 
agree to placement of marine mammals among their member 
institutions, there will always be a number of public display 
facilities that will not be included in any association- sponsored 
placement plan for abandoned marine mammals. It is for these 
facilities that the proposed permit regulations propose a surety 
bond that, upon abandonment or seizure of captive marine mammals, 
may be invoked by NMFS to defray at least some of the expenses of 
the permit holder that assumes temporary or long-term custody of 
such marine mammals. 

NMFS believes that this and similar difficult problems 
increasingly jeopardize the health and welfare of captive marine 
mammals, and must be addressed directly. Again, to the extent 
possible, these problems should be addressed by the public 

14 



54 



display industry itself. However, where, for one reason or 
another, the health and welfare of captive marine mammals falls 
through the cracks, these marine mammals must be protected by the 
regulating agency under the MMPA, whether it is NMFS or APHIS. 

Marine Mammal s in the Wild 

As for activities involving marine mammals in the wild, we 
believe that some changes in the law are necessary. 

The scientific study of marine mammals is an important source of 
information on these protected species. And, I can tell you from 
repeated first-hand experience, that many marine mammal 
scientists believe there is something wrong with a law that 
requires them to go through an application, public notice, and 
review process to get a permit, while this same law allows 
commercial fisherman to incidentally take marine mammals under a 
simple registration procedure. This perception that marine 
mammal research is being regulated unfairly is reinforced when 
the question is raised, "Which of these activities, commercial 
fishing or marine mammal research, is more likely to benefit 
marine mammals?" 

At present, scientific research that involves only non-intrusive 
close approach must meet the same permit requirements as apply to 
more intrusive research. Applying these same permit requirements 

15 



55 



to all research activities conducted in the wild, including those 
involving non-intrusive close approach, has proven inefficient 
and inflexible. Clearly, the permit requirements of the MMPA are 
too burdensome and too lengthy when the research involves only 
the non- intrusive close approach of marine mammals in the wild. 

Much of the scientific research on wild marine mammals involves 
only non- intrusive close approach without significant contact or 
restraint. We believe that the MMPA should be amended to shorten 
and simplify the permit process for scientific research involving 
these low- impact types of harassment. 

In addition, there are other activities that have proven 
important in increasing the public's understanding and 
appreciation of marine mammals. These include both activities 
that allow the public to observe these magnificent animals in the 
wild and efforts to bring documentary films and photographs of 
wild marine mammals to the large segment of the public that will 
never be able to observe them in their natural habitat. The law, 
as presently written, does not provide an exception to the 
general moratorium on the taking of marine mammals for purposes 
of public observation or wildlife photography, resulting in a 
virtual prohibition on the non- intrusive close approach of wild 
marine mammals for such educational purposes. Such non-intrusive 
close approach of wild marine mammals should be authorized under 
the law and monitored appropriately by NMFS . However, it is 

16 



56 



clear that the such authorization and monitoring should be simple 
and straightforward, and that such activities should not be 
subject to the same review as more intrusive procedures. 

We propose that the MMPA be amended to provide for the permitting 
of non- intrusive close approach of marine mammals in the wild for 
purposes of public observation and wildlife photography. We also 
propose that the law be amended to allow the Secretary to waive 
the 30-day public comment period for both scientific research 
permits and the new permits for public observation and 
photography, where such permits involve only the non- intrusive 
close approach of marine mammals. We would be pleased to discuss 
other amendments that would achieve these same objectives. 

There are a few other issues that cannot be addressed solely 
through the regulatory process or improved administration of the 
permit program. These issues, if they are to be addressed, 
require amendments to the MMPA. These include: 

1) The exchange of native art between U.S. and foreign museums 
or other institutions open to the public, where such native art, 
in whole or part, includes marine mammal parts subject to MMPA 
prohibitions. The MMPA does not include a specific provision for 
exempting art works and handicrafts containing marine mammal 
parts from the prohibition on importing such parts. If such 
native art is not purchased or sold, NMFS believes that the MMPA 

17 



57 



should be amended to provide for the import and export of such 
native art for the purpose of its exhibit in a museum or other 
similar institution open to the public, or for other native 
cultural purposes. 

2) Similarly, the MMPA does not provide an efficient mechanism 
to authorize small levels of harassment incidental to other 
activities. The regulatory process of section 101(a) (5) of the 
MMPA is a lengthy procedure that precludes authorizing some 
activities with only minor impacts. The Act should be revised to 
allow small, incidental takes of marine mammals that have only a 
negligible impact under a much more straightforward, simpler, and 
less lengthy process. 

3) The exemption from the MMPA for animals already in captivity 
prior to the enactment of the MMPA should be rescinded. Although 
this exemption may be appropriate in the case of marine mammal 
parts or products, NMFS believes it is time, more than 20 years 
after enactment of the MMPA, to remove this exemption as it 
applies to living animals held captive for public display or 
scientific research purposes. This exemption served its purpose 
during the initial period following enactment of the MMPA. 
Marine mammals presently exempted from the provisions of the MMPA 
should be afforded the same protection under the MMPA as all 
other marine mammals . It is time to ensure that the provisions 



18 



58 



of the MMPA apply consistently to all marine mammals held for 
public display or scientific research purposes. 

Thank you Mr. Chairman and Members of the Subcommittee for this 
opportunity to express the views of the Department. I would be 
pleased to answer any questions you or other Members may have. 



19 



59 



Responses from Dr. Nancy Foster to 

Questions by H. James Saxton Before the 

Subcommittee on Environment & Natural Resources 

February 10, 1994 

Your questions were in reference to the Proposed Rule to 
Revise Regulations for Public Display and Scientific Research 
Permits under the Marine Mammal Protection Act (MMPA) , Endangered 
Species Act (ESA) , and the Fur Seal Act (FSA) , published in the 
Federal Register on October 14, 1993. 

1) Why are these Regulations Necessary? 

The proposed rule is necessary to address concerns identified 
by the regulated communities, conservation organizations, and 
federal agencies regarding inconsistencies and uncertainties in the 
permitting process; the lack of enforcement against non-compliance 
and abuse of permit privileges; and the vulnerability to frequent 
litigation. 

Briefly, following the extensive amendments Congress made to 
the MMPA in 1988, NMFS initiated an open review of the permitting 
process. The proposed rule is the product of that review. The 
rule proposes to implement the 1988 amendments, consolidate 
existing regulations under one section of the U.S. Code, establish 
consistent and predictable regulatory requirements, eliminate 
duplicative procedures, clearly define permitted activities to 
avoid unnecessary litigation, and establish clear and enforceable 
responsibilities for permit -holders to address problems with non- 
compliance and abuse. 

2) Why are they not overreaching? 

I believe you were referring to two primary areas of criticism 
by the public display industry: (1) the proposal for a surety bond 
and (2) the requirement for education and conservation programs. 

First, the proposal for a $10,000 surety bond to be provided 
for each marine mammal in captivity is to cover the expense of 
care, transport and final disposition in the event of abandonment. 
The amount and the mechanism of a surety bond was included in the 
proposed rule to initiate broad discussion of this serious problem. 
This would be a one-time cost, per animal, per facility, with per- 
facility costs never exceeding the actual number of animals held by 
that facility. The industry estimates the maximum cost to be $500 
per animal . 

Beyond the humane issues involved with the disposition of 
abandoned animals, there is the economic issue of public monies 



60 



being used to bail out for-profit businesses. For years, NMFS has 
encouraged the display industry to self -insure against this 
problem. The larger, more prominent display facilities, under 
membership of the AZA (American Association of Zoos and Aquariums) 
and The Alliance of Marine Parks and Aquariums, indicated during 
testimony that they are willing to initiate discussions on this 
subject. Although we applaud efforts to address this issue, it is 
important to note that 4 0% of the industry does not hold membership 
with these organizations. These are often small, marginal 
facilities, with histories of non-compliance and economic 
uncertainty. As such, it is important that the animals held at 
these facilities be provided for. 

Second, the other area being criticized as "far-reaching" by . 
the public display industry is the 1988 Congressionally mandated 
requirement for educational and conservation programs to be 
provided at public display facilities. These are to meet 
"professionally recognized standards", and be "acceptable to the 
Secretary of Commerce". Unfortunately, "professionally recognized 
standards" have not yet been developed by the public display 
community. 

Critics mistakenly assert that NMFS is proposing to regulate 
the content of these programs. Based on the diversity of display 
facilities, NMFS recognizes that the content of education and 
conservation programs, and the methods employed to communicate _ to 
the public, will necessarily vary. Therefore NMFS has no intention 
of attempting to dictate or regulate the conte nt and style of such 
programs . While leaving decisions of form and substance to the 
professional educators, as they should be, the proposed rule 
includes as a basic "acceptable" requirement that, whatever the 
content or technique, such educational programs must effectively 
convey information that is accurate and consistent with the 
policies and objectives of the MMPA. 

A Facility that conducts a professional education or 
conservation program should have no problem meeting such a basic 
requirement . 

3) How are we going to pay for them? 

The NMFS has requested no increase in funding from current 
levels. Rather, with the increased efficiency expected to accrue 
from the proposed rule, NMFS anticipates being fully able to 
conduct the program envisioned by the proposed rule. 



61 



STATEMENT OF MOLLIS BEATTIE, DIRECTOR, U.S. FISH AND WILDLIFE 
SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE HOUSE MERCHANT 
MARINE AND FISHERIES COMMITTEE, SUBCOMMITTEE ON ENVIRONMENT AND 
NATURAL RESOURCES, CONCERNING REAUTHORIZATION OF THE MARINE MAMMAL 
PROTECTION ACT 

February 10, 1994 



Mr. Chairman, I appreciate the opportunity to discuss the Marine 
Mammal Protection Act. In addition to an overview of the 
activities of the U.S. Fish and Wildlife Service, my statement 
provides information on the status of marine mammals under our 
jurisdiction and proposals we are considering for amending the Act. 

FISH AND WILDLIFE SERVICE INVOLVEMENT 
The Act establishes a Federal responsibility for the conservation 
of marine mammals. Under the Act, the Secretary of the Interior, 
through the Service, is responsible for protecting and managing 
polar bears, sea and marine otters, walruses, manatees, and dugong. 

In general, the Act established a moratorium on the taking and 
importation of marine mammals, but contains procedures for waiving 
the moratorium under certain circumstances. The taking of marine 
mammals by Alaska Natives for subsistence or for creating and 
selling authentic Native handicrafts and clothing is exempted from 
the moratorium, as long as it is accomplished in a non-wasteful 
manner . 

The Act establishes a procedure for transferring to the States the 
authority to manage marine mammals. The Act also authorizes the 



79-705 0-94-3 



62 



Secretaries of the Interior and Commerce to allow incidental, but 
not intentional, take of small numbers of marine mammals during 
commercial fishing operations — an issue that has received 
considerable attention since the Act was last amended in 1988 — 
and in association with other, specified activities. 

Within the Department of the Interior, the Service is responsible 
for managing marine mammals under our jurisdiction, and for 
enforcing the moratorium on taking and importing marine mammals and 
marine mammal products. In carrying out these responsibilities, we 
evaluate and process requests for waivers of the moratorium, as 
well as requests for transfer of management authority to the 
States, and we conduct law enforcement activities. 

The Service also advises the Department's Outer Continental Shelf 
Development Program and reviews measures proposed to protect marine 
mammals during offshore oil and gas exploration and development. 
Finally, we participate in the development of international 
agreements and activities. 

Under authority of the Endangered Species Act, the Service lists 
marine mammals under its jurisdiction that are endangered or 
threatened, and we enter into consultations with Federal agencies 
to protect such species. 

In conducting these activities, the Service maintains a cooperative 



63 



working relationship with the Marine Mammal Commission and its 
Committee of Scientific Advisors, the National Marine Fisheries 
Service, the newly created National Biological Survey, the Bureau 
of Indian Affairs, and other Federal agencies. We also cooperate 
with affected States, Alaska Native organizations, conservation 
organizations, and other entities on marine mammal issues of mutual 
concern. 

STATUS OF MARINE MAMMALS UNDER SERVICE JURISDICTION 
All three species of manatees, the dugong, the marine otter, and 
the southern or California sea otter are listed as endangered or 
threatened under the Endangered Species Act and, therefore, are 
considered depleted under the Marine Mammal Protection Act. Marine 
mammal species under Service jurisdiction in Alaska are considered 
to be non-depleted and populations are currently believed to be 
healthy. 

The Pacific walrus, a population shared with Russia, had an 
estimated minimum population of 201,000 in 1990 based on a joint 
Russia/U.S. population survey. Although this estimate is less than 
the estimate of 232,000 animals derived from the 1985 survey, 
anomalous ice conditions prevailed during the 1990 survey and 
comparing the two estimates is, at best, a tenuous proposition. 
The Service believes the Pacific walrus population is at pr near 
historic high levels and is stable or slightly decreasing. 



64 



The polar bear population in Alaska is shared with both Canada and 
Russia and is believed to number about 5,000 animals. The 
northern, or Beaufort Sea, population is estimated to be 1,800 
animals. The western, or Bering-Chukchi Sea, population is 
believed to number about 3,200 animals. The Service considers 
polar bear stocks in Alaska to be healthy and possibly increasing 
slightly. 

A growing population of sea otters in Alaska, estimated to number 
between 100,000 and 150,000 individuals, has become reestablished 
in most of the species' historic range and is considered by the 
Service to be healthy. Although the population as a whole is 
healthy, specific subpopulations within the State are of concern. 
The south-central Alaska sea otter population is in a recovery 
phase from acute mortality following the Exxon Valdez oil spill of 
1989, and long-term sublethal effects on the population are not 
well understood. In southeast Alaska, harvest numbers have 
increased dramatically and there is concern that the population 
level may be affected. 

Although the Service believes that population levels of these three 
Alaska marine mammals are sound, we are considering proposals 
addressing issues necessary to ensure their long-term viability. 
These proposals include the following, that will be discussed in 
the order they appear in the Act. 



65 



Whether the Act's language is precise enough to allow specific 
protection of marine mammal habitats has been questioned. There is 
also confusion as to whether the Act authorizes actions solely for 
species below optimum sustainable population levels, or for all 
marine mammal species irrespective of the status of their 
populations. Further, there is an apparent inconsistency in the 
use of the terms "major objective" and "primary objective." 

In section 2(7) of the Act, Congress found that marine mammal 
management should "maintain the health and stability of the marine 
ecosystem." While single-species oriented initiatives have 
achieved some important success under the Act, greater emphasis 
must be placed on understanding and managing the complex factors 
that govern the health and stability of the marine environment. 

By adopting an anticipatory, ecosystem-based approach to managing 
marine mammals and their habitat, it should be possible to protect 
living marine resources, avoid legal restrictions that could hinder 
resource use and development activities that impact protected 
species, and advance the Act's primary goal of marine ecosystem 
health and stability. 

To ensure the authority to develop regulations to protect specific 
threatened or vulnerable habitats, we are considering recommending 
amendments to sections 2 and 3 to include and broaden habitat 
protection provisions. The habitat protection provision of the 



66 



1973 International Agreement on the Conservation of Polar Bears, a 
provision that has not been fully implemented, may also need to be 
specifically addressed. 

The Service is concerned with the clarity of definitions in section 
3. For example, the Act is ambiguous about what constitutes an 
authentic Native handicraft, and the lack of specificity hinders 
management activities, such as providing sound legal advice to 
Native hunters. 

The term "edible portion" is not currently defined, and that has 
led to the sale of gall bladders and male reproductive organs as 
aphrodisiacs or for other purposes. The increased sale and 
interstate transportation of these items could affect the harvests 
of certain species, such as polar bear. We are looking at ways to 
exclude these items from the definition of edible portion in 
section 101(b)(2) of the Act. 

To clarify the standards that apply, the Service is examining 
modifications to section 101 of the Act to specifically authorize 
the Secretary to address import and taking moratorium waivers on a 
population and species-specific basis, thus assuring foreign 
governments that the Secretary would evaluate their management 
programs on the same basis as waivers of the moratorium for 
domestic management programs. This would slightly ease current 
conditions that prevent legally sport-hunted marine mammals from 



67 



being imported into the United States, a restriction that is often 
insufficiently supported by biological rationale. 

The Service is considering the need for amendments to section 
101(b) to address methods and means of harvesting marine mammals, 
and to ensure consistency with the 1973 International Polar Bear 
Agreement. Currently, the Act does not contain any restrictions on 
methods and means for Alaska Native hunters, and therefore may be 
inconsistent with the 1973 agreement. Thus, we are considering 
proposing a prohibition on the use of aircraft and large motorized 
vessels in the taking of polar bear by Alaskan Natives, including 
the use of any aircraft to locate, land, and shoot polar bear, or 
in transporting polar bear or polar bear parts taken in violation 
of the Act. 

We are also reviewing ways to enhance the management provisions of 
section 101(b) by authorizing the Secretary to initiate the 
development of harvest restrictions when the population of a 
species declines to ten percent above the depletion level. The 
actual implementation of those restrictions would not occur until 
the species is at the level of depletion. We are considering a 
process that would maintain the integrity of the Native subsistence 
exemption while ensuring that a critical regulatory program would 
be in place at the point of depletion and not years later. 

Initiation of the regulatory process prior to depletion would also 



68 



draw public attention to the serious decline of the species, 
hopefully generating voluntary harvest restrictions that could 
avoid depletion altogether. Under the approach we are considering, 
the establishment of prescribed regulations that would be made 
after public notice and a formal hearing on the record. This 
proactive approach would ensure that marine mammals continue to 
provide subsistence benefits to future generations of Alaskan 
Natives without imposing unnecessary restrictions on these 
benefits. 

The proposed benchmark of a population size ten percent above the 
depletion level would serve only as a mechanism to trigger the 
formal rulemaking process for promulgating regulations. If the 
depletion level were reached, no take, other than Native 
subsistence take, would be authorized and Native subsistence take 
would be subject to restrictions imposed by the Secretary's 
regulations. These regulations would be reviewed and revised, as 
necessary, no less than every six years. 

We are also considering proposing amendments to relax restrictions 
on exchanges of personal items between Alaska Natives and 
indigenous peoples of other circumpolar nations where marine 
mammals occur, and allowing Alaska Natives to bring personal items 
back into the United States when returning from foreign travel. 

Alaska Natives engage in cultural and other exchanges with other 



69 



Natives, including those from Russia, Canada, and Greenland. 
Increased openness with Russia has facilitated reestablishment of 
family ties between Russian and Alaska Natives, but provisions in 
the Act that prohibit importation have precluded the opportunity 
for Alaska Natives to receive gift items from Native peoples from 
Russia, Canada, Greenland, and Norway. Further, the Act prohibits 
Alaska Natives from taking marine mammal products out of the United 
States and then returning with those same items. This problem also 
needs to be addressed. 

Currently, the Act does not provide for lethal take of polar bears 
in defense of life, an omission that could be viewed as a technical 
oversight. Lethal takes do occur infrequently. They are currently 
investigated on a case-by-case basis and are handled as a matter of 
prosecutorial discretion. We are looking at ways to specifically 
allow any person to intentionally take a polar bear by harassment 
for deterrence purpose and, as a last resort lethally, in defense 
of life. The provision would be specific to defense of life and 
not to defense of property. 

Presently, we are examining our authority to issue permits for 
long-term maintenance of rehabilitated but non-releasable marine 
mammals. To address this issue, we are looking at ways to clarify 
the current permit requirements of section 104 to make clear that 
holding facilities must obtain a permit for long-term captive 
maintenance of rehabilitated marine mammals that are deemed to be 



70 



unfit for return to the wild. 

He are also exploring ways to provide grants to develop and 
implement management agreements with Alaska Natives. The Service 
is developing new conservation plans for polar bears, sea otters, 
and walrus. Alaska Natives have played, and will continue to play, 
an integral role in developing and implementing these plans, and 
there is increasing impetus for developing and implementing 
management measures with Alaska Natives. 

The Service is party to memoranda of agreement with the Alaska Sea 
Otter Commission and the Eskimo Walrus Commission. Through a 
grants program, Alaska Native organizations could hire professional 
biologists and subsistence use specialists that would facilitate 
their interactions with Federal and State managers and biologists, 
as well as the development and implementation of management 
programs. Such professionals could also facilitate development of 
conservation education programs and assist in collecting and 
disseminating traditional and cultural knowledge to government 
scientists. 

The success of the North Slope Borough in self-regulating marine 
mammal management programs, as demonstrated in their polar bear 
agreement with the Inuvialuit Game Commission in Canada, can 
largely be attributed to their funding support and maintaining a 
professional staff of wildlife biologists, veterinarians, and 

10 



71 

subsistence use specialists. 

Lastly, we are looking at the possibility of establishing a new 
"Information and Education" program to develop materials to further 
public knowledge and understanding of marine mammals and their 
habitats. Public interest in marine mammals is at an all-time 
high, and there is a need to provide the public with sound 
biological information. This effort would help to heighten 
awareness of this important need. 

Thank you again, Mr. Chairman, for the opportunity to testify these 
important issues. I will be pleased to respond to questions. 



11 



72 



STATEMENT OF 

JOHN E. REYNOLDS, III, PH.D. 

CHAIRMAN 

MARINE MAMMAL COMMISSION 

BEFORE THE 

SUBCOMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES 
COMMITTEE ON MERCHANT MARINE AND FISHERIES 

HOUSE OF REPRESENTATIVES 

FEBRUARY 10, 1994 

Mr. Chairman and members of the Committee: 
I am John E. Reynolds, III, Chairman of the Marine Mammal 
Commission. It is my pleasure to appear before you this morning. 
As requested, I will confine my remarks to issues related to 
reauthorization of the Marine Mammal Protection Act other than 
the new regime to govern the take of marine mammals incidental to 
commercial fisheries. 

The Committee specifically requested the Commission's views 
with respect to scientific research permits under the Marine 
Mammal Protection Act and on the management of marine mammals for 
public display. I would also like to comment on issues of 
concern to Alaska Natives and the need to reconcile the 
provisions of the Marine Mammal Protection Act with our 
international responsibilities under the Agreement on the 
Conservation of Polar Bears. I shall address issues related to 
scientific research first. 

Scientific Research 

When it passed the Marine Mammal Protection Act in 1972, 
Congress recognized that there was inadequate knowledge of the 
ecology and population dynamics of marine mammals and realized 
that a vigorous research effort would be needed to overcome this 
deficiency. After all, it is difficult or impossible to make 
wise decisions with incomplete or inaccurate data. The Act 
directed the Secretaries of the Interior and Commerce to 
undertake a marine mammal research program and authorized the 
Secretaries to issue permits allowing the taking and importation 
of marine mammals, including those from depleted populations, for 
purposes of scientific research. 

The Act requires that permits authorizing the taking or 
importing of marine mammals for scientific research or other 
purposes specify — 

(A) the number and kind [e.g. the species, age, and sex] of 
animals which are authorized to be taken or imported, 



73 



(B) the location and manner (which manner must be 
determined by the Secretary to be humane) in which they may 
be taken, or from which they may be imported, 

(C) the period during which the permit is valid, and 

(D) any other terms or conditions which the Secretary deems 
appropriate. 

Such permits also are to specify "the methods of capture, 
supervision, care, and transportation which must be observed 
pursuant to and after such taking or importation." 

Each permit application must be reviewed by the Marine 
Mammal Commission in consultation with its Committee of 
Scientific Advisors. Also, the Act reguires that notice of each 
permit application be published in the Federal Register and the 
public be given 3 days to review and comment on the application. 
There currently is no provision in the Act for waiving the 30-day 
comment period, even when a waiver would be in the best interest 
of the marine mammals involved or when unanticipated and possibly 
unigue research opportunities would be lost. 

The Act was amended in 1988 to set forth additional 
reguirements applicable to scientific research permits. The 
amendments specify that: 

A permit may be issued for scientific research purposes only 
to an applicant which submits with its permit application 
information indicating that the taking is reguired to 
further a bona fide scientific purpose and does not involve 
unnecessary duplication of research. No permit issued for 
purposes of scientific research shall authorize the killing 
of a marine mammal unless the applicant demonstrates that a 
non-lethal method for carrying out the research is not 
feasible. The Secretary shall not issue a permit for 
research which involves the lethal taking of a marine mammal 
from a species or stock designated as depleted, unless the 
Secretary determines that the results of such research will 
directly benefit that species or stock, or that such 
research fulfills a critically important research need. 

The legislative history of this provision explains that the 
addition of the reguirement that research further a bona fide 
scientific purpose was "not intended to substantively change the 
criteria for granting scientific permits" but was merely intended 
to codify existing regulations. Nevertheless, including this 
reguirement in the statute focused attention on the determination 
that proposed research be bona fide . While the reguired finding 
may not have changed, the heightened scrutiny given scientific 
research applications by reviewing agencies as a result of the 
1988 amendment has no doubt increased the paperwork burden placed 



74 



on both the applicants and the agencies. 

Since enactment of the 1988 amendments, many scientists, 
including members of the Commission and its Committee of 
Scientific Advisors, have complained that it takes longer than it 
should and more information than necessary is reguired to obtain 
permits for scientific research. In response to these concerns, 
the Commission convened two workshops in 1993 to discuss the 
perceived problems and to identify possible solutions. Related 
factors noted by workshop participants included the following: 
(1) instructions to applicants are overly long, unclear, and not 
linked to the statutory and regulatory findings that must be 
made; (2) implementation of the requirement that research be 
" bona fide " has been more rigorous than was originally intended 
by Congress; (3) even for experienced scientists, it is not 
always possible to reasonably estimate in advance how and how 
many animals may be taken, particularly by harassment, in the 
course of certain types of research; (4) there is no mechanism to 
expedite permit issuance when necessary to (a) protect or 
otherwise benefit a species, population, or individual marine 
mammal which is in jeopardy, or (b) enable researchers to respond 
to the presence of uncommon animals or other unanticipated 
research opportunities that would otherwise be lost; (5) some 
permits contain unreasonably restrictive conditions and demanding 
reporting requirements; (6) all research permit applications are 
processed, and the research itself regulated, the same regardless 
of the degree and type of take or the status of the marine 
mammals involved; and (7) there is no way to authorize possible 
harassment of endangered, threatened, or depleted marine mammals 
in the course of making documentary films or taking photographs 
for either educational or commercial purposes. 

Workshop participants identified several actions that could 
be taken to address these problems. They suggested specific 
changes to the permit application instructions currently used by 
the National Marine Fisheries Service that would make them more 
understandable to researchers, thereby reducing the possibility 
that incomplete or otherwise deficient applications would be 
submitted. In this regard, it might be helpful if Congress were 
to take steps to encourage the National Marine Fisheries Service 
and the Fish and Wildlife Service, in consultation with the 
Marine Mammal Commission and its Committee of Scientific Advisors 
on Marine Mammals, to develop and make available to the 
scientific community clear and concise instructions for preparing 
and submitting applications for permits to take marine mammals 
for purposes of scientific research. Further, it would be useful 
if Congress were to direct the Services to institute procedures 
whereby they would advise applicants, within 30 days of receiving 
an application, as to whether the application contains sufficient 
information to make the required determinations and, if not, 
precisely what additional information is required. 



75 



While processing times for permits have improved over the 
past year, the Commission believes that further improvement is 
possible and would be beneficial. For the 30 permits issued by 
the National Marine Fisheries Service and the 3 permits issued by 
the Fish and Wildlife Service in 1993, it took, on average, over 
three months to complete agency review once the application had 
been determined to be complete. The Commission believes that, 
even with a mandatory 30-day public comment period, the Services 
should be able to complete most reviews within 60 days. In this 
regard, it might be useful if the committee were to instruct the 
Services to make a concerted effort to meet this goal. If, by 
the end of 1995, the average time between receipt of a complete 
application and issuance of a permit for scientific research 
exceeds 60 days, the Services should be asked to (1) report as to 
why they have been unable to meet this objective and (2) suggest 
changes that would facilitate processing. 

Another possible way to speed up review of applications for 
scientific research permits would be to authorize the Secretaries 
of Commerce and the Interior to exempt certain carefully selected 
categories of research, through regulation, from the notice and 
comment reguirement and perhaps other existing permit 
reguirements (e.g. , the reguirement that all permits specify the 
number of animals authorized to be taken) . It would seem, for 
instance, that expedited review and issuance of permits would be 
appropriate in cases where, based upon past experience, it is 
clear that the research would have negligible effects on both 
individual and population health and welfare. 

In this context, it is important to keep in mind that the 
likelihood and significance of possible effects may vary 
depending upon the species being studied, the type of aircraft, 
surface vessel, or other eguipment being used, and the experience 
and expertise of the researcher, as well as the nature of the 
activity itself. For example, while there is no doubt that 
certain researchers have learned through experience how to 
approach certain species of whales in certain areas without 
disturbing them, it does not necessarily follow that 
inexperienced researchers can carry out the activity with a 
similar low likelihood of disturbance or that the same type of 
approach necessarily would have the same low probability of 
disturbing other species or the same species in different 
settings. Similarly, it does not follow that disturbing, 
handling, or tagging 100 individuals necessarily would have the 
same effect on every species or population — e.g. , endangered 
Hawaiian monk seals, threatened Steller sea lions, and much more 
numerous northern elephant seals and California sea lions. 

Also, the process for authorizing the importation of 
specimen material for scientific research might be simplified by 
authorizing the Secretaries of Commerce and the Interior to 
exempt, through regulation, such importation from the Marine 



76 



Mammal Protection Act's notice and comment requirement when 
certain conditions are met. These conditions could include prior 
notification of intent to import specimens, a statement of 
scientific purpose, appropriate certification that the materials 
were collected and will be exported in accordance with the laws 
of the country of origin and any other applicable authority, and 
notification of what specimen material was actually imported. 

As noted above, there has been some confusion regarding 
implementation of the requirement enacted in 1988 that only 
research for bona fide scientific purposes be authorized. While 
the National Marine Fisheries Service is trying to alleviate this 
problem through adoption of a regulatory definition of the term, 
it might be useful if Congress, in report language, were to 
provide additional guidance. In this regard, the Committee might 
indicate its intention that the term bona fide , as used in 
section 104(c)(3) of the Act, be given its common definition, 
i.e. that it refers to an application made in good faith without 
fraud or deceit, an application made with earnest intent, and a 
scientific purpose which is nether specious nor counterfeit. 

Activities other than research that have been conducted 
under the authority of scientific research permits in the past 
include documentary film making and commercial photography. 
While it is clear that some filming and photography of marine 
mammals can be done in ways not likely to harass the animals, 
approaches that do cause harassment may, in other instances be 
necessary. The Commission believes that these activities can 
serve extremely useful educational functions. Unfortunately, the 
Act, as it exists, provides no straightforward way to authorize 
such taking, except through formal rulemaking, and then only for 
non-depleted species and populations. 

If only non-depleted marine mammals were involved, film 
makers and photographers could seek a waiver of the moratorium. 
But, this process is unnecessarily complex and expensive in light 
of the type and level of taking that would be involved. It also 
should be noted that, as with public display permits, waivers may 
not authorize the taking of depleted marine mammals. 

Also, filming and photography, while they can serve to raise 
public awareness of and appreciation for marine mammals, do not 
fit under the permit authority for enhancement added to the Act 
in 1988. Because there is no available alternative, scientific 
research permits have been used to authorize takings which occur 
while photographing or filming marine mammals. 

The National Marine Fisheries Service has noted that there 
have been some problems associated with allowing commercial 
filming and photography under scientific research permits. At 
times, the desire to obtain valuable footage or pictures may 
create an incentive to approach animals in ways not necessarily 



77 



consistent with the authorized research. The Service believes 
that in some cases scientific research permits may have been used 
"as a subterfuge for conducting unauthorized commercial 
activities," and in its proposed regulations, would place strict 
limitations on when "marketable products" resulting from 
permitted scientific research could be sold. 

The Commission concurs that only bona fide research, 
independent of any commercial or recreational considerations, 
should be conducted under scientific research permits. Under the 
proposed rule some photographs and films obtained by researchers 
could still be sold or otherwise disseminated, but only in 
limited instances. In some instances these limitations make 
sense; in others they may not. 

The Commission also believes, however, that the problem 
could be overcome by amending the Act to enable the Secretaries 
of Commerce and the Interior to issue permits authorizing the 
taking of marine mammals, including depleted species, incidental 
to filming for either educational or commercial purposes under 
certain conditions (e.g., when the effects on individuals and 
populations clearly would be negligible) . Thus, photography 
would continue to be allowed without permit where no harassment 
takes place, incorporated under scientific research permits when 
appropriate, and authorized as an independent activity when 
impacts would be negligible. 

Another major problem with the existing statutory scheme for 
authorizing scientific research permits is the lack of any means 
for waiving the 3 0-day public notice and comment requirement. In 
some situations the Secretaries' inability to expedite permit 
issuance has delayed research necessary to detect, understand, or 
alleviate known or possible threats to marine mammals. In other 
instances, unique or unanticipated research opportunities have 
been lost because a permit could not be issued quickly enough. 

To address these problems, the Commission believes that it 
would be desirable to amend the Act to authorize the Secretaries 
to issue permits before the end of the 30-day public comment 
period when delaying initiation of research could result in harm 
to a species, population, or individual marine mammal, or result 
in loss of unique research opportunities that could not 
reasonably have been foreseen. As with the parallel provision of 
the Endangered Species Act, which authorizes waivers of the 
public comment period for permits when delay would threaten the 
health or life of an endangered animal, the Secretary should be 
required to publish a notice of such a waiver, and the reasons 
for it, in the Federal Register within 10 days of permit 
issuance. 

The Commission believes that the other problems with the 
scientific research program identified by the workshop 



78 



participants, e.g., reporting requirements placed on permittees, 
can be addressed administratively. 

Another issue related to scientific research is the proposal 
that the Marine Mammal Protection Act be amended to prohibit 
invasive and lethal research on marine mammals unless it will 
directly benefit the species in the wild. 

While the Commission agrees that invasive and lethal 
research techniques should not be used needlessly, we strongly 
believe that, in addition to research designed to benefit wild 
marine mammal populations, use of lethal or invasive techniques 
might at times be necessary and appropriate when conducting some 
types of basic research. In all instances, however, the existing 
statutory provisions would be applicable to ensure that such 
techniques will not be used when non-lethal or less invasive 
methods are practicable. 

Public display 

In testimony presented to the Senate Committee on Commerce, 
Science, and Transportation on 28 July 1993, the American 
Association of Zoological Parks and Aquariums, representing the 
public display industry, and the Humane Society of the United 
States, representing several environmental and animal welfare 
organizations, proposed several amendments to the public display 
provisions of the Act. The Commission would like to comment on 
the principal amendments advocated by these groups. 

The American Association of Zoological Parks and Aquariums 
and the Humane Society each thought changes were needed in the 
current jurisdiction for captive marine mammals. The American 
Association of Zoological Parks and Aquariums believes that all 
authority for captive marine mammals should be vested in the 
Animal and Plant Health Inspection Service. The Humane Society 
believes that all authority should be placed with the National 
Marine Fisheries Service. While not explicit in its testimony, 
it may be that the Humane Society is advocating that the National 
Marine Fisheries Service be given authority over all captive 
marine mammals including those that are otherwise under the 
jurisdiction of the Fish and Wildlife Service. 

Currently, jurisdiction over most captive animals, including 
marine mammals, is vested in the Animal and Plant Health 
Inspection Service under the Animal Welfare Act. In addition, 
section 104(c)(1) of the Marine Mammal Protection Act, which 
requires marine mammal permits to specify "the methods of 
capture, supervision, care, and transportation which must be 
observed pursuant to and after such taking or importation," 
confers jurisdiction over those captive marine mammals held under 
permit to the National Marine Fisheries Service and the Fish and 
Wildlife Service. Also, the Marine Mammal Protection Act's 



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8 

definition of "take" does not limit the occurrence of a take to 
the wild. Since 1979, when they entered into a memorandum of 
agreement, the three agencies have recognized shared jurisdiction 
over captive marine mammals under the two statutes. 

A recent district court ruling ( Mirage Resorts v. Franklin ) , 
however, has placed in doubt the authority of the National Marine 
Fisheries Service and the Fish and Wildlife Service over captive 
marine mammals. The court concluded that Congress, in enacting 
the Marine Mammal Protection Act, intended the Act "only to apply 
to marine mammals in the wild." Consistent with this view, the 
court ruled that the National Marine Fisheries Service lacks 
authority to regulate swim-with-the-dolphin programs, "as such 
programs do not involve a 'taking' of the marine mammals from 
their natural habitat in the wild." Broadening the applicability 
of its decision, the court also found the Service's position that 
its "regulating authority covers the purchase, transportation, 
and continuous care of previously captured animals [to be] 
untenable. " 

In contrast, the court found that the Animal and Plant 
Health Inspection Service has broad authority over captive marine 
mammals under the Animal Welfare Act. In this regard, the court 
ruled that nothing in its order "should be construed as a 
prohibition on the Animal and Plant Health Inspection Service 
from issuing regulations regarding [swim-with-the-dolphin] 
programs. " 

Another aspect of the Mirage ruling needs to be called to 
the attention of this Committee as it considers amendments to the 
Marine Mammal Protection Act. The ruling may have unforeseen 
conseguences for facilities seeking to transport, purchase, and 
sell captive marine mammals. Under section 102(a)(4) of the Act 
it is unlawful for any person to transport, purchase, sell, or 
offer to purchase or sell any marine mammal unless it is 
authorized pursuant to another provision of the Act, e.g. under a 
public display permit. If, as the court has stated, the Service 
is without authority to regulate transportation, purchases, 
sales, or anything other than the removal of animals from the 
wild, the Service not only would be precluded from prohibiting 
such activities, it would be precluded from authorizing them. 
That is, there may be not any mechanism to overcome the statutory 
prohibition against transporting, purchasing, and selling marine 
mammals, if, as the court has ruled, the Service has no 
jurisdiction to authorize such activities. Even if it does 
nothing else to clarify agency authority over captive marine 
mammals under the Marine Mammal Protection Act, Congress should 
give its attention to this de facto prohibition on transporting, 
selling, and purchasing marine mammals. 

As to the underlying guestion of which agency or agencies 
should be given jurisdiction over captive marine mammals, the 



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9 

Commission believes that split jurisdiction has, for the most 
part, worked well. The Animal and Plant Health Inspection 
Service has broad authority for and experience with the care and 
maintenance of captive animals. As such, its view of captive 
maintenance issues is more likely to be influenced by policy 
concerns not specific to marine mammals. The National Marine 
Fisheries Service and the Fish and Wildlife Service, on the other 
hand, have a narrower focus, with greater expertise with respect 
to marine mammal biology, physiology, and behavior and the 
specific needs of these animals. 

The Animal and Plant Health Inspection Service, through 
regulation, has established generic standards setting minimum 
reguirements that all licensed facilities maintaining captive 
marine mammals must meet. Among other things, those standards 
address the physical environment of captive animals (e.g. 
materials, space, water guality, temperature, ventilation, etc.), 
the adeguacy of the facility's staff and veterinary care program, 
and the transportation of animals. The Animal and Plant Health 
Inspection Service also has a corps of veterinarians who 
periodically conduct inspections of marine mammal facilities to 
ensure compliance with the standards. Although the existing 
standards may need updating to reflect new information on care 
and maintenance of marine mammals, the existence of a set of 
enforceable standards is extremely valuable. 

In contrast, the National Marine Fisheries Service and the 
Fish and Wildlife Service, through their review of specific 
permit applications, provide closer scrutiny of individual 
reguests to obtain and maintain marine mammals. Also, inasmuch 
as their review is tailored to individual circumstances, the 
National Marine Fisheries Service and Fish and Wildlife Service 
are able to respond more quickly to specific or novel situations. 
The Animal and Plant Health Inspection Service, on the other 
hand, may have to go through a lengthy rulemaking to amend its 
applicable regulations. For example, the National Marine 
Fisheries Service has filled a void in the Animal and Plant 
Health Inspection Service regulations by adopting facility- or 
program-specific conditions for the use of marine mammals in 
interactive displays. 

Also, the National Marine Fisheries Service and, to a lesser 
degree, the Fish and Wildlife Service, through reporting and 
other requirements, track the condition and whereabouts of 
individual marine mammals maintained under permits. For example, 
under the National Marine Fisheries Service's permit conditions, 
facilities are required to mark marine mammals so that they are 
identifiable, to provide annual reports describing the health and 
condition of animals, to report mortalities and provide necropsy 
reports, and to obtain authorization to sell or transfer animals. 
These records are maintained in a computerized data base. 
Without these means of monitoring the whereabouts and identities 



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of marine mammals, and for tracking transfers, the chances that 
animals could be substituted for other animals or could be housed 
in sub-standard facilities are increased. Likewise, there would 
be no data base for estimating survival rates of marine mammals 
in captivity. The Animal and Plant Health Inspection Service has 
no comparable inventory and tracking system. 

Another consideration weighing in favor of joint authority 
for captive marine mammals is differential coverage under the two 
statutes. The Animal Welfare Act applies to all animals held by 
licensed facilities in the United States. The Marine Mammal 
Protection Act applies to all facilities holding marine mammals 
under permit. The Animal Welfare Act governs the care and 
maintenance of "pre-Act" marine mammals not covered by the Marine 
Mammal Protection Act. On the other hand, the Marine Mammal 
Protection Act applies to foreign facilities maintaining marine 
mammals under U.S. permits and to domestic facilities that, 
because of compliance problems, may have lost their exhibitors 
licenses. 

In sum, the responsibilities of the three agencies with 
authority for captive marine mammals are largely complementary. 
The interagency agreement works working well and there is little 
duplication of effort under the two statutes. Therefore, the 
Commission recommends that Congress take whatever steps are 
necessary to clarify that jurisdiction over captive marine 
mammals is intended to be provided under both the Animal Welfare 
Act and the Marine Mammal Protection Act. 

Both the American Association of Zoological Parks and 
Aquariums and the Humane Society also advocate an amendment with 
respect to interactive display of marine mammals such as swim- 
with-the-dolphin programs and petting pools. The American 
Association of Zoological Parks and Aquariums supports an 
amendment to authorize interactive exhibition of animals, while 
the Humane Society believes that all direct contact between the 
public and captive marine mammals should be prohibited. 

The legislative history of the Act recognizes that there is 
a diversity of public display facilities and calls upon the 
Secretary to recognize and foster this diversity. Further, 
Congress has never seen a need to define what constitutes "public 
display" other than to require that an acceptable facility offer 
a program for education or conservation that meets industry 
standards and that the facility be open to the public on a 
regularly scheduled basis. Within this framework several types 
of interactive displays can be and have been authorized. 

The Commission believes that interactive displays can 
enhance educational opportunities and supports retention of 
agency discretion to authorize such displays in appropriate 
instances. There should not, however, be a blanket authorization 



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n 

given for any type of interactive display that a facility would 
like to establish. Rather, the Secretary should be given the 
necessary latitude to authorize such interactions based upon a 
careful analysis of the potential risks and benefits of the 
proposed interactive display. In this regard, there may be a 
need to clarify that, in authorizing interactive displays, the 
Secretary should weigh not only the potential risks to the health 
and welfare of the animals involved, but to public safety as 
well. 

The American Association of Zoological Parks and Aquariums 
proposed an amendment to allow marine mammals from depleted 
populations to be imported for purposes of public display if the 
animals were held in captivity prior to the depletion designation 
or if the animals are captive born. 

At present, the only permits that may be issued to authorize 
the taking or importation of depleted marine mammals are those 
for scientific research or enhancement. An exception from the 
general prohibition on importing depleted marine mammals for 
other purposes, e.g. public display, is made by section 102(d)(1) 
for marine mammals that were imported into the United States 
prior to publication of a proposed depletion finding. The 
proposed amendment would expand the exception to allow 
importation of a depleted marine mammal if the animal were 
removed from the wild prior to issuance of a depletion finding or 
is the progeny of a marine mammal removed from the wild prior to 
issuance of a depletion finding. 

There are several potential problems with this proposed 
amendment. First, the rationale for the amendment seems to be 
that the original taking did not significantly contribute to 
causing depletion of the population and, therefore, that those 
who hold such marine mammals should not be penalized by 
foreclosing the opportunity to use or sell the mammal for 
purposes of public display. This is not necessarily the case. 
In some instances, the removal of animals for captive maintenance 
may have contributed to depleting the population. 

Second, such an amendment should only be considered if there 
were an acceptable international system for identifying and 
tracking individual marine mammals. Without such a system, 
animals could be removed from the wild, "laundered" through 
foreign facilities or passed off as the progeny of pre-depletion 
animals, and imported to the United States for public display. 

Third, whether or not animals were held in captivity prior 
to issuance of a depletion finding, it may be appropriate to 
limit uses of such animals to those designed to help rebuild the 
depleted stock. In this regard, it should be noted that 
importation of marine mammals from depleted stocks is permissible 
for enhancement purposes and that public display of such animals 



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may be authorized if it is incidental to, and will not interfere 
with, the underlying enhancement purpose. 

An additional problem with this proposal is tying the 
exception to issuance of a final depletion finding. While the 
Commission does not support this proposed amendment in any form, 
at the absolute minimum, it should be revised along the lines of 
section 102(d)(1) of the Act, setting publication of the proposed 
depletion finding as the cutoff point by which the marine mammal 
must be in captivity. Without such a requirement, there is a 
risk that the publication of a proposed depletion finding will 
set off a rush to capture animals from that stock before the 
determination is final. 

The American Association of Zoological Parks and Aquariums 
also advocates exempting Marine Mammal Protection Act permitting 
actions from the requirements of the National Environmental 
Policy Act. 

By and large, marine mammal permitting actions do not have 
significant environmental impacts. As such, the National Oceanic 
and Atmospheric Administration and the Fish and Wildlife Service 
have "categorically excluded" the issuance and modification of 
these permits from the general National Environmental Policy Act 
provisions requiring preparation of an Environmental Impact 
Statement (EIS) and/or an Environmental Assessment (EA) . 
Pursuant to the categorical exclusions, most permits may be 
issued without conducting an assessment of their impacts. 

Some permits, however, may fall within exceptions to the 
categorical exclusions because of the scope, novelty, 
uncertainty, or cumulative impacts of the requested activities. 
In such instances, preparation of an EA or an EIS is required. 
While some may view this requirement as a needless obstacle to 
permit issuance, preparation of such a document in those 
circumstances serves a valuable function. The required analyses 
not only assess the potential impacts of proposed actions, but 
identify alternatives that may be environmentally preferable. 

It should also be noted that compliance with the National 
Environmental Policy Act, at least for most permits, is not very 
burdensome. Of the hundreds of permits issued by the National 
Marine Fisheries Service, only a handful have required 
preparation of an environmental document — and these generally 
were for relatively large scale activities, e..g. the Heard Island 
sound transmission experiment, the Minerals Management Service's 
bowhead whale research program, the swim-with-the-dolphin 
program, and a proposal to capture up to 100 and remove 10 killer 
whales from Alaska. Only two permits issued by the Fish and 
Wildlife Service have prompted the preparation of an EA and none 
have required the preparation of an EIS. 



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13 

While the amendment sought by the American Association of 
Zoological Parks and Aquariums would clear up any uncertainty 
about the applicability of the NEPA requirements to individual 
permits, it would do so at the expense of the benefits that 
result from NEPA analyses in exceptional circumstances. A better 
approach would be to strengthen the system used by the Services 
to identify when exceptions to the categorical exclusions are 
present. 

The Humane Society supports an amendment to prohibit further 
captures of wild marine mammals for public display purposes. The 
Humane Society contends that there are already sufficient numbers 
of certain marine mammals in captivity (e.g. Tursiops) to furnish 
the needs of the public display industry through captive 
breeding. For some pinniped species kept in captivity, the 
demand for display animals can be met by captive breeding or by 
stranded animals that are unreleasable to the wild. 

The proposed amendment, however, is overly broad. While the 
demand for public display specimens from some species can 
probably be met from captive breeding, a reduction in the size of 
the Navy's marine mammal program, and from unreleasable stranded 
animals, this is not universally the case. The proposed 
amendment would have the practical effect of limiting public 
display opportunities to those species now commonly held in 
captivity or prone to stranding. Even for some commonly held 
species, the captive population may not be sufficiently large to 
allow breeding in perpetuity without a periodic infusion of 
genetic variability from wild populations. 

A more pragmatic approach would be to amend the Marine 
Mammal Protection Act to require the Secretary, when reviewing 
applications for public display permits to consider whether there 
are practical alternatives to the removal of animals from the 
wild. Only in those cases where it is reasonably demonstrated 
that taking animals from a wild population is necessary should 
removals be authorized. 

The Humane Society also seeks to amend the Act to prohibit 
the intentional feeding of marine mammals in the wild. 

The Marine Mammal Commission has long held the view that the 
feeding of marine mammals in the wild may be harmful and 
constitutes a prohibited taking under the Act. Among the 
considerations that led the Commission to its conclusion are that 
feeding programs may (1) cause animals to be attracted to fishing 
boats and other vessels, increasing the likelihood that they will 
become entangled in fishing gear, be struck by vessels, or be 
shot, poisoned, or fed foreign objects; (2) cause animals to 
become dependent on such food sources and become less able to 
find and catch natural prey when feeding is discontinued; (3) 
alter migratory patterns, thereby subjecting animals to food 



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14 

shortages or inhospitable conditions that otherwise would be 
avoided; (4) condition animals to expect food from people, 
possibly causing aggressive behavior when food is not offered; 
and (5) expose animals to and make them more susceptible to 
disease. 

In 1991, the National Marine Fisheries Service issued a rule 
to include feeding wild marine mammals within the regulatory 
definition of taking. While this rule was successfully 
challenged in district court, that finding was overturned by the 
Fifth Circuit Court of Appeals in October 1993. As such, there 
no longer appears to be a need for such an amendment. 

Another recent case ( United States v. Hayashi) , which also 
looked at the issue of taking by harassment under the Marine 
Mammal Protection Act, should be called to your attention. In 
this case, the Ninth Circuit Court of Appeals overturned the 
conviction of a fisherman for allegedly taking porpoises by 
shooting at them to deter them from interacting with his gear and 
catch. For the reasons noted below, the court's ruling is 
problematic. 

Noting that the term "harass" was not defined in the statute 
or by applicable regulation, the court ascertained its meaning by 
examining the other elements of taking (hunting, capturing, and 
killing) included in the Act's definition of "take." Inasmuch as 
those elements all involve "direct, sustained, and significant 
intrusions upon the normal, life-sustaining activities of a 
marine mammal," the court concluded that "'harassment,' to 
constitute a ' taking' .. .must entail a similar level of direct and 
sustained intrusion." Reviewing the facts of the case, the court 
concluded that shooting at the porpoises did not have the 
significance or sustained effect to be a taking under the Act and 
reversed the conviction for insufficiency of evidence. 

A dissenting opinion took issue with the majority's 
reasoning and the scope of the ruling. The dissenting judge 
believed that the majority, in order to overturn a conviction it 
thought unreasonable, had unjustifiably restricted the breadth of 
the Act. The dissenting judge found "no source in the language, 
structure, or legislative history of the Act" to support "the 
gloss imposed by the majority" on the taking definition. 
Further, the judge thought that the majority's cramped 
construction of the term "taking" would unjustifiably "restrict 
most aspects of the scheme envisioned by Congress for the 
protection of marine mammals." 

Concerned with the application of the Hayashi ruling to 
other factual settings and the implications of the ruling on its 
ability to enforce the Act effectively, the Government, on 9 
November 1993, petitioned the Court of Appeals to rehear the 
matter. While not objecting to the reversal of the conviction on 



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other grounds, the Government took issue with the court's 
narrowing of the "take" definition. While it is hoped that the 
court will reconsider its opinion, this is an issue that bears 
watching by Congress. If the holding limiting the definition of 
harassment to direct and sustained intrusions on marine mammals 
is left intact, legislation to include lesser forms of 
disturbance and molestation under the definition would be 
warranted. 

Alaska Native Issues 

From our discussions with representatives of Alaska Native 
groups it appears that they are primarily concerned with three 
issues related to reauthorization, other than the proposed regime 
to govern the taking of marine mammals incidental to commercial 
fishing operations. First, they seek to ensure that the current 
exemption allowing the taking of marine mammals for subsistence 
and handicraft purposes is maintained. Second, Native 
communities would like to build on current efforts to enhance 
cooperation between the Alaska Natives and the Fish and Wildlife 
Service in managing polar bear, sea otter, and walrus populations 
in Alaska. Third, they would like to have the Act amended to 
allow the importation of marine mammal products that: a) were 
exported from the United States in conjunction with personal 
travel; b) were acquired by an Alaska Native outside the United 
States as a gift from a Native inhabitant of Russia, Canada, or 
Greenland; or c) are being imported by Native inhabitants of 
Russia, Canada, or Greenland in conjunction with their personal 
travel or as gifts for Alaska Natives. 

The Commission supports retention of the existing exemption 
for Alaska Natives. As was recognized by Congress when the Act 
was passed in 1972, traditional uses of marine mammals by Alaska 
Natives should be protected and given primacy over other uses. 
Although there have been problems from time to time with the 
current system, Native communities have worked hard to eliminate 
them. 

The Commission believes that cooperative efforts between 
appropriate governmental agencies and Native groups provide the 
best long-term solution for managing the take of marine mammals 
for subsistence and handicraft purposes. Native communities have 
expressed a willingness to work with the Service to ensure that 
levels of take do not adversely affect the populations. 

Informal discussions with the Service indicate general 
support for this approach. However, the Service has suggested 
that more explicit authority is needed to enable it to make 
grants or provide other financial assistance to Alaska Natives 
participating in such cooperative management activities. While 
the Commission agrees that such activities should be funded, it 
does not believe that a substantive amendment is needed, although 



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it may be useful to note this in report language. 

Section 110 of the Act authorizes the Secretary to make 
grants or otherwise provide financial assistance to any Federal 
or State agency, public or private institution, or other person 
for the purpose of undertaking research relevant to the 
protection and conservation of marine mammals. In addition, the 
Secretary has broad authority under section 112(c) to enter into 
contracts, leases, cooperative agreements, or other transactions 
as may be necessary to carry out the purposes of the Act. There 
can be little doubt that financial assistance to Alaska Natives 
to develop cooperative management plans and to participate in 
cooperative management activities to protect and conserve marine 
mammals can be provided under these provisions. 

Further in this regard, the Commission believes that the 
ongoing development of conservation plans for the polar bear, sea 
otter, and walrus, provide the appropriate context in which to 
identify cooperative efforts that should be undertaken and to 
assess and justify needed funding. 

The amendment to authorize importation of certain marine 
mammal items is similar to one introduced by Senator Murkowski in 
the last Congress. That proposed amendment would have 1) 
authorized Alaska Natives to import into the United States gifts 
containing marine mammal parts received from Natives of other 
countries; 2) allowed anyone who legally possesses a marine 
mammal product in the United States to obtain permission to 
export, and subseguently re-import, the item; and 3) authorized 
the issuance of permits for the temporary importation of marine 
mammal parts into the United States if the importation is 
associated with an organized cultural exchange. 

Such an amendment would likely have little effect on marine 
mammal populations, but would have important benefits to Alaska 
Natives by fostering relations among circumpolar Natives. 
Senator Murkowski" s bill contained most of the safeguards 
necessary to prevent abuses of the proposed exceptions. With a 
few minor modifications, enactment of such an amendment is 
supported by the Commission. 

The Murkowski bill would have required an Alaska Native 
importing a gift containing marine mammal parts to register that 
item with the Secretary. Consideration should also be given to 
requiring other Alaska Natives to whom such items might be 
transferred to re-register the item. Also, while the bill 
implied that items to be exported and re-imported into the United 
States must be legally possessed by the owner, this should be 
made an explicit requirement of the provision. 



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Agreement on the Conservation of Polar Bears 

Committee staff have been provided with copies of a report 
prepared for the Commission on reconciling the legal mechanisms 
to protect and manage polar bears under domestic statutes and the 
Agreement for the Conservation of Polar Bears. That report 
suggests several amendments that could be made to the Marine 
Mammal Protection Act and the Agreement to bring them into full 
conformance. Among other things, Congress might consider 
amending the Act to prohibit using aircraft or large motorized 
vessels to take or assist in the taking of polar bears, to 
prohibit hunting of polar bear cubs or females with cubs or in 
denning areas, and to strengthen protections for polar bear 
habitat. Among other things, habitat protection under the Marine 
Mammal Protection Act could be enhanced by including the term 
"harm, " including harm that results from habitat degradation or 
modification, within the definition of "take." 



89 

TESTIMONY OF 

THE AMERICAN ZOO AND AQUARIUM ASSOCIATION 

AND 

THE ALLIANCE OF MARINE MAMMAL 
PARKS AND AQUARIUMS 

PRESENTED BEFORE 

THE SUBCOMMITTEE ON ENVIRONMENT AND NATURAL 
RESOURCES 

ON 

10 February 1994 



90 



TESTIMONY OF THE 

AMERICAN ZOO AND AQUARIUM ASSOCIATION 

AND THE ALLIANCE OF MARINE MAMMAL PARKS AND AQUARIUMS 

The 162 accredited members of the American Zoo and Aquarium Association ("AZA") 
and the 3 1 members of the Alliance of Marine Mammal Parks and Aquariums ("Alliance") 
represent zoos, aquariums and scientific research facilities which further the goals and objectives 
of marine mammal conservation through the public display of, and research regarding, marine 
mammals. In 1992, over 115 million people visited Alliance and AZA facilities. The Alliance 
and the AZA strongly support the Marine Mammal Protection Act ("MMPA") and appreciate 
this opportunity to share information about our members' educational, research, and stranding 
rescue programs and to discuss the MMPA. 

I. The Public Display and Scientific Re search Community 

Contributes to Marine Mammal Co nservation. 

A. Education . 

To the millions of people who visit our facilities, we offer an otherwise unattainable 
learning opportunity. Millions of people walk away from our facilities with a strong and 
determined interest in assuring that marine mammals are safe and protected in the wild. Visitors 
learn about the importance of conservation, responsible human behavior, principles of ecology, 
animal communication, and natural behaviors. 

Zoological parks and aquariums serve as learning centers for the 1 1 5 million people who 
visit our facilities every year. Eight million schoolchildren visit zoos and aquariums as part of 
their school year curriculum, and another 2 million participate in outreach programs. Thirteen 
million adults and children take part in formal and informal education programs. Another 8-9 
million will have the opportunity this year alone to benefit from a new and progressive 
educational satellite television series. Using cable television one facility aired eight programs 
during the 1992-93 school year which featured live host educators, up close footage of marine 
mammals, interviews with marine mammal experts and the opportunity for students to ask 
questions using a toll free number. In addition to these programs, 25,000 teachers are given in- 
service training by zoos and aquariums each school year. 

AZA accredited zoos and aquariums also conduct international training programs for 
zoologists and wildlife managers, support local education programs, and provide fellowships, 
internships, and student grants. They also donate their time, materials and equipment to 
conservation education projects in developing countries. In 1990-1991, AZA member 
institutions initiated or supported 45 educational programs in 24 nations worldwide. 



91 



An October, 1 992 nationwide poll by the Roper Organization shows the public is in near 
unanimous agreement (92%) that marine life parks play an important role in educating the public 
about marine mammals and environmental conservation. Significantly for the cause of marine 
mammal conservation, 86% feel if the public learns more about marine mammals, they are more 
likely to become concerned about marine mammal conservation. 

The results of a 1992 Canadian poll paralleled the Roper survey. Eight often people 
surveyed by Decima Research described their visit to an aquarium as educational. 

AZA and Alliance zoological parks and aquariums open to the public typically have 
professional educators on staff. Exhibit graphics are designed in cooperation with these 
professionals. Trained presenters answer the questions we know from experience our guests will 
raise based on visitor research. Habitat themes are enhanced through interpretive graphics, 
illustrated guidebooks, and narrated programs, to name a few. High tech computer simulations 
and video presentations augment educational messages. Surveys and studies of structured 
classroom groups back up the hypothesis that contact with live animals improves learning and 
retention. Above and beyond models and preserved specimens, contact with live animals 
improves attitudes towards them. Visitors to zoos and aquariums to see whales and dolphins 
should be viewed as a "link in a chain of learning." 

Visitors to AZA and Alliance facilities begin learning the moment they enter. For many 
people, visiting an AZA or Alliance facility is often their first and only experience with marine 
mammals. This experience, coupled with the unique educational materials they see, instills in 
visitors an awareness of ecological and conservation issues, not only about marine mammals, but 
also about invertebrates, sharks, fish, turtles, birds, oceanography, coral reef ecology, endangered 
species and more. 

At some facilities, graphics and narrated presentations are supplemented by 
demonstrations in which a teacher discusses animal behavior while trainers help the animals 
demonstrate the behavior. 

In addition to our programs for the general public, most AZA and Alliance members offer 
specially designed educational programs prepared by experienced teachers. Programs are offered 
for the blind, students who speak foreign languages, gifted students, preschoolers, autistic 
children, and teachers and professors at the elementary, undergraduate and graduate levels, as 
well as adults of all ages. 



Document nil I J 



92 



For schools which cannot bring their students to us, some AZA and Alliance members 
have developed auditorium programs and other outreach programs. We often send a curriculum 
aid packet in advance of the trip to assure that the educational benefits of the visit are optimized. 

Outreach programs are not confined to the communities in which Alliance and AZA 
facilities are located. Educational material available by mail include curriculum guides, activity 
packets, educational posters, flashcards, illustrated information booklets, fact sheets, and 
educational videos. Alliance and AZA members are working with the National Education 
Association, the National Science Teachers Association, and the National Marine Educators 
Association to publicize these programs. 

Every month, hundreds of letters from school children arrive at our zoos and aquariums. 
Ashley, from Connecticut, writes "I would like to help save the whales, but in order for me to do 
that I need you to help me. Please tell me how I can help." Brandi from Ohio, tells us "When I 
grow up I want to be a marine biologist." 

After a week's course in Florida to learn about marine mammals, students from Denver 
organized a slide show for their English and social studies classes calling for a tuna boycott to 
protect dolphins. 

The California State Superintendent of Public Instruction wrote another public display 
facility saying he was particularly impressed with their "curriculum materials that integrate the 
academic disciplines of mathematics, science and social science." 

One parent accompanying her child to a park commented that "close contact with 
dolphins makes the whole issue come alive for (children). Protecting wildlife becomes more real 
and therefore encourages more effort and activism." 

The Education Program Coordinator of the Hawaiian Humane Society complimented 
another marine life park on its contributions to seminars for local educators on "Animal 
Education Programs." 

These comments are typical of the positive public response to the programs offered by 
AZA and Alliance members. 



-3- 

Document »52 13 



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B. R esearch- 



Research is also an essential element of the program at zoos and marine mammal parks 
and aquariums. Much of what is known about marine mammal biology, physiology, 
reproduction and behavior results from scientific research conducted by public display facilities. 

Generally, research by Alliance and AZA members falls into two categories -- onsite 
projects and field research. 

On-site projects are often aimed at improving animal husbandry knowledge including 
health information, diet and reproductive biology. This type of research continues to assure that 
our marine mammals are housed in the best-designed habitats. 

Captive breeding programs are also implemented at AZA and Alliance facilities as part of 
a more holistic effort to preserve species in their natural habitats. Conservation of the world's 
wildlife and its habitat is the highest priority of AZA. The association's conservation activities 
were initiated with the development of the Species Survival Plan (SSP) in 1981 . The SSP now 
manages cooperative breeding programs for 64 species. The Marine Mammal Taxon Advisory 
Group (TAG) was recently formed to prioritize marine mammal species for captive propagation 
and recommend species for which new studbooks and SSPs should be developed. 

The Marine Mammal TAG is composed of a diverse group of experts including 
representatives from other conservation organizations, field biologists and zoological 
professionals. This insures that the best informed recommendations on captive propagation 
management will be made. The designation of priority species for captive breeding is based on 
captive population size, available space for propagation, breeding success, status in the wild, 
genetic viability of the captive population, and ultimately, the long range outlook for enhancing 
or reestablishing native populations in the wild. 

The second category of research is field research. Findings are presented at professional 
meetings and then published in scientific journals. In this way, our research benefits 
government, environmental and conservation groups throughout the world. 

In the past five years, Alliance and AZA members have spent over $20 million on marine 
mammal research. Over the past 25 years, our members have published over 1 ,600 research 
studies and presented the results to professional organizations and conferences. 



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Research projects undertaken by Alliance and AZA members have achieved 
breakthroughs which benefit all marine mammals, including wild populations. For example: 

The marine mammal community has developed specialized 
vitamin and nursing formulas for young animals born in 
zoological environments that have been used to increase 
the survival of young abandoned by their mothers in the 
wild. 

Fuel oil is no longer added to off-shore oil drilling 
fluids because the Edgerton Research Laboratory, an 
integral part of the New England Aquarium, identified 
number 2 fuel oil as the most toxic component in oil 
drilling fuel mixtures. 

Studies of the food intake rate and reproductive biology 
of the northern fur seal have contributed to the overall 
knowledge of this species, now designated as depleted. 

Researchers tested a satellite-linked radio transmitter 
allowing scientists to learn more about the ranging 
patterns of dolphins in the open waters of the Gulf of 
Mexico. 

The Long Marine Laboratory is currently training 
California sea lions to swim with gray whales and tape 
whale behavior with video cameras. By studying gray 
whale behavior, researchers hope to acquire information 
that will protect the whales in their natural environment as 
well as protect the habitat they require. This research is being 
underwritten, in part, by the National Geographic Society. 

Collaborative efforts between the University of Hawaii 
and a marine mammal facility have resulted in a test to 
identify concentrations of the deadly ciguatoxin in the 
blood of humans and animals. Early detection and 
treatment is now possible for people and marine mammals 

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that have ingested fish tainted with toxin. 

Scientists have worked with the Air Force to study the 
effects of aircraft noise on birds and marine mammals. 

A study was done with the National Institutes of Health 
and others to determine how harbor seals may avoid heart 
disease even though their all sea-food diet is high in 
protein and fatty acids. This study is being used to 
provide clues as to how humans can fight heart disease, 
the number one killer of adults. 

Another facility initiated collaborative research which 
led to the identification of seal influenza in the North 
Atlantic. 

The health maintenance research done at marine mammal facilities is also essential for 
treating sick and stranded animals. Without knowledge of marine mammal health and 
physiology, and without the techniques necessary to help these animals, successful rehabilitation 
would be impossible. 

C. Helping Stranded Animals . 

Many Alliance and AZA members voluntarily participate in federally-sponsored 
stranding response networks organized by the National Marine Fisheries Service. Because of 
their extensive expertise with marine mammals, Alliance and AZA members are called upon by 
the public, local animal welfare organizations, and state and federal regulators to respond to 
animals in distress through strandings and injury. 

Annually, thousands of marine mammals are reported as stranded on the coasts of the 
United States. Efforts to save these animals and generate scientific knowledge are almost 
exclusively due to the dedication of the institutions and individuals of the Stranding Network 
who receive no payment for their efforts. One Stranding Network member, Sea World, spent 
$3.4 million over the last five years rescuing 2,728 animals, including birds and other animals as 
well as cetaceans. Of those animals, 1,307 were rehabilitated and 1,080 were released. 



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The New England Aquarium currently responds to approximately 500 strandings each 
year, including mass strandings of 30-90 pilot whales. The aquarium provides rescue and 
rehabilitation services, and has returned pilot whales to their habitat. It has also assisted more 
that 50 seals of 5 different species, returning many to the wiid. Direct costs of these efforts are 
estimated to be $100,000 per year, in addition to thousands of hours of trained volunteer help. 

There are many other examples of rescue efforts, including a west coast sea otter rescue 
and care program designed to rehabilitate and return abandoned pups and sick and injured adults 
to their natural environment. 

The marine mammal community is not reimbursed for the expenses associated with the 
medical treatment of stranded animals, - and stranding operations are costly. In the last five 
years, Alliance and AZA members alone have spent over $5 million rescuing, treating, feeding 
and releasing marine mammals. As a result of efforts by the public display community and 
others, 1,500 marine mammals were returned to their natural environments in the last five years. 
Sadly, stranded animals are often severely injured and would not be able to survive in the wild. 
These animals, most of which are not suitable for display, are maintained at Alliance and AZA 
facilities at their own cost. 

In addition to responding to calls to assist stranded marine mammals, it is not uncommon 
for a single Alliance or AZA facility to receive over 1 ,500 calls a year regarding marine 
mammals, birds and other wildlife in distress. Nor is it uncommon for the animals care staff of 
these facilities to examine large numbers of animals that succumbed in a mass die-off. Staffs are 
on call 24 hours a day, seven days a week. 

AZA and Alliance members have also long understood that the study of stranded animals 
is important to protect marine mammals in the wild. This work provides essential data about the 
natural history of a species and population dynamics, and is an indicator of factors affecting these 
animals such as disease, pollution and parasites. Thus, when animals are released, they are 
marked for re-identification and many are radio/satellite tracked by federal agencies to gather 
still more data to help other animals. 

Another example of stranding related research now being done with a wild population is a 
project evaluating the health of the Matagorda Bay, Texas dolphin population, which suffered an 
unusual mortality event in the spring of 1991. Public display community veterinarians 
participating in the study, which is funded by the National Marine Fisheries Service, have 



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reported to NMFS that his project presents a strong foundation upon which to understand 
subsequent events. 

AZA and Alliance members make substantial contributions to the rescue, rehabilitation 
and release of stranded marine mammals. In fact, the accumulated knowledge, collective 
experience and resources of AZA and Alliance facilities are primary factors in these rescue 
efforts. 

II. Public Display Facilities Contribute to Their Communities . 

AZA and Alliance members contribute substantially to the communities in which they are 
located through the thousands of people they employ, the millions of dollars spent on goods and 
services, the monies paid and generated in taxes, increased tourism, and the additional dollars 
spent in the community by visitors. 

Alliance members pay over $55 million in various taxes annually. Employment taxes are 
paid to the Federal government, states, municipalities and counties as well as taxes and fees for 
water, sewer and utility usage and telephone service. Taxes paid by visitors and collected by 
these facilities for remittance to the appropriate government entity include those for food at 
restaurants, sales at gift shops and entertainment taxes on gate receipts. For-profit institutions 
also pay municipal property taxes and sales taxes. 

In addition, Alliance facilities spend another $250 million yearly on the purchase of 
goods and services and provide thousands of jobs. Over 12,000 people are employed in full or 
part-time positions. 

Annually, AZA members make over $440 million in capital improvements to their 
facilities. More specifically marine parks have invested over $1 .2 billion in their communities 
through construction, continuing expansion and maintenance of their operations. 

Studies done by individual AZA and Alliance members clearly demonstrate that public 
display institutions have a significant positive impact on their local communities and states. 
Based on an economic impact study, the New England Aquarium, for example, estimates total 
off-site spending by visitors to its facility is more than $289 million. This off-site spending is 
believed to generate $8.7 million in sales and use taxes. Similarly, Marine World Africa U.S.A. 
in California estimates it generates an estimated $95-105 million for the local economy annually. 

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The benefits to the community from marine mammal public display facilities, either in 
direct payments and taxes, other generated revenues, economic multipliers, employment 
opportunities, tourism, business and infrastructure growth, are significant financial ones. More 
difficult to evaluate, yet equally important, is the community identity and civic pride that comes 
from being the home to each of these zoos, aquariums, oceanariums and marine life parks. 

HI. Public Attitudes Toward Zoos and Aquariums . 

An October 1992 nationwide poll by the Roper Organization showed that Americans 
believe public display facilities play a positive role in protecting animals and wildlife and in 
educating the public about the animals and environmental conservation. Four in ten Americans 
said they have visited an aquarium, animal theme park, or zoo in the past year. 80% said they 
enjoyed going to public display facilities and one in six actually contributed financial support. 

There is near unanimous agreement (92%) that public display facilities play an important 
role in educating the public about marine mammals and their environment. 91% of the people 
surveyed agree that aquariums and zoos provide children with an important opportunity to learn 
about wild animals and are important in educating children about these animals. 

These findings by the Roper Organization were confirmed in a recent Canadian poll. 
Eight often people surveyed by Decima Research considered public display facilities to be 
educational. 

Perhaps the most significant finding of the poll was that 86% believe if the public leams 
about animals at zoos and aquariums, they are more likely to become concerned about protecting 
these animals and their habitat. Interestingly, two thirds of the public consider it important, if 
mot essential, to entertain visitors while they learn about animals. 

The vast majority of people surveyed feel that aquariums and zoos play an important role 
in preserving animals and that studying animals in captivity helps develop sound conservation 
programs for animals. Further, the public credits public display facilities with most of the 
successes that have been realized in saving endangered species. 

The public supports the public display of marine mammals as an important tool in 
conserving marine mammals and their environment. 



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IV. AZA Accreditation Program and Code of Professional Ethics . 

The AZA monitors the activities of its members through an accreditation program. One 
of the foremost objectives of the AZA is to maintain high professional standards and to influence 
continuing growth of superior zoological parks and aquariums. In developing and updating its 
accreditation program, the AZA is especially concerned with the need for high standards of 
animal management and husbandry. This objective is paramount in the maintenance and care of 
living collections. Good conscience permits no higher priority. The Accreditation Commission 
also accords special attention to how these living collections are used. 

Accreditation certifies that an institution is currently meeting standards established by the 
Association and is based upon the informed judgment of experienced individuals within the 
profession. Zoological parks and aquariums must qualify for accreditation at least once every 
five years. Facilities may be inspected during the five year period if suspected problems are 
presented to the AZA. 

Both institutional and individual members are bound by the AZA Code of Professional 
Ethics. This Ethics Code was developed by the profession and is the standard by which proper 
conduct is measured. 

The AZA Ethics Board, composed of 9 professional AZA members elected by the voting 
membership is responsible for developing and maintaining the Code, as well as investigating 
formal written complaints of Code violations and initiating investigations on its own. Anyone 
can bring an ethics charge against an AZA institution. Based on the results of these 
investigations, the Ethics Board makes recommendations for appropriate action to the Board of 
Directors. 

The Code includes obligations of professional ethics and mandatory standards. Deviation 
by a member from the Code of Professional Ethics is considered unethical conduct and the 
member becomes subject to investigation by the AZA's Ethics Board and, if warranted, to 
disciplinary action. 

The AZA is always refining and revising its ethics guidelines based on the professional 
expertise of its membership. For example, last spring, the AZA and Georgia Tech University 
convened a conference to consider ethical issues facing the Species Survival Plan. Funded by a 
grant from the National Science Foundation, the conference brought together nearly 50 experts in 
animal welfare, wildlife conservation and management, environmental ethics, and zoo biology to 

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discuss ethics surrounding captive breeding, display design, surplus animals, behavioral 
enrichment and other relevant topics. Much progress was made and the conference results will 
be published by the American Association for the Advancement of Science. 

V. NMFS Prop osed Regulations. 

The National Marine Fisheries Service ("NMFS") recently issued proposed regulations on 
public display of marine mammals. The NMFS proposed regulations represent a major public 
policy shift from the current scheme for regulating activities that affect marine mammals and, if 
finalized, would create significant new regulatory requirements and a new federal bureaucracy. 
The proposal is extraordinarily far reaching and would certainly require a considerable increase 
in NMFS' resources. 

The NMFS proposal amends the definition of "take" to include holding a marine mammal 
captive. The proposed definition would require a facility to apply for a permit and/or 
authorization every time they transfer, purchase, hold, or sell a captive marine mammal. The 
redefinition of "take" ignores Congressional intent of the MMPA. The Act, its legislative 
history, NMFS' own precedents and Court decisions agree "take" means activities in the wild. 
The 1972 Committee Report refers to "take" as activities in the wild. In 1974 when NMFS 
issued its first regulations, the Office of the General Counsel issued an opinion stating that "take" 
did not apply to animals already in a zoological environment. This position was reaffirmed in a 
1975 General Counsel's Opinion. NMFS' Annual Reports to Congress repeatedly state that the 
term "take" did not apply to animals already removed from the wild. The only court which has 
considered the meaning of the term "take" held that it only applies to activities in the wild. 

NMFS is now also arguing it has authority to establish care and maintenance standards 
for captive marine mammals. These standards would include standards for the animals and for 
facility and equipment design as well as for hiring personnel. The Animal and Plant Health 
Inspection Service ("APHIS") already has established care and maintenance standards under the 
Animal Welfare Act. There is no need for another care and maintenance standards. If there are 
problems with APHIS' administration of the regulations, then APHIS should be given more 
resources to carry out their duties. Moreover, APHIS is in the process of reviewing their care 
and maintenance standards by using the formal negotiated rulemaking process. 

The NMFS proposed regulations also contain excessive and probably unconstitutional 
regulation over educational programs. According to the MMPA, NMFS does not have authority 
to regulate the content of educational programs. Nonetheless, under the proposed regulations, 

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NMFS would have the authority to close down or compel changes in a zoo or aquarium program 
that, in the agency's view, is not "accurate" or "consistent with the policies and objectives of the 
MMPA" or is not conveyed "in an effective manner." The terms "accurate", "consistent" or 
"effective" are based on subjective judgment which cannot be made without unconstitutionally, 
examining the content of a facility's educational program. 

Significant areas of the proposed regulations exceed the statutory authority granted 
NMFS in the MMPA. For example, NMFS intends to require permit holders to post a $10,000 
surety bond (or make equivalent arrangements) for each animal they hold. This bond is intended 
to offset the costs of caring for the animals should a facility terminate operations or its permit be 
withdrawn. We are unaware of any statutory authority to support the imposition of a bond 
requirement. 

The proposal requires each facility to obtain a five-year permit. This permit is nothing 
more than permission to apply for yet another authorization since permissions granted under the 
five-year permit cannot be exercised until additional authorizations are obtained. We believe this 
is a fundamental flaw in the regulations and can only be solved by eliminating the facility permit 
and defining NMFS' authority as the protection of animals in the wild. In addition to a five year 
permit, the NMFS proposal requires a series of required authorizations and notifications, thus 
creating a very cumbersome process. For example, an importation of a marine mammal requires 
that requests for an authorization to import be submitted to NMFS headquarters at least 30 days 
prior to the proposed event and specify or include certain information. Assuming both facilities 
are permitted under the NMFS regulations, the same information must be resubmitted to NMFS 
three weeks before the transfer and again one week before. And much of the information must 
be submitted by both parties to the transfer and importation. Why isn't it sufficient to have the 
information submitted once by one party? 

Finally, AZA and Alliance members are concerned that the proposed regulations threaten 
the good work they do. A recent economic impact study conducted by Arthur D. Little, Inc. 
showed that the proposed regulations would increase costs for the zoological community by 
more than $32 million over five years. This figure represents the impact on the zoological 
community alone; it does not include the impact on the scientific community or the costs to 
NMFS of implementing this new system. If these regulations were finalized, the resources (staff 
time and operational dollars) of AZA and Alliance members, would be directed away from 
animal care, research and caring for stranded animals and redirected towards duplicative 
paperwork and probably increased litigation. 



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We believe that the NMFS' proposed regulations, the need to eliminate government 
duplication and to streamline the regulation of activities involving marine mammals, provide a 
compelling need for the MMPA to be amended. 

VI. MMPA Amendments. 

AZA and Alliance members recommend that the MMPA be amended to: 

1 . Clarify that each offer to sell or purchase a marine mammal, the signing of a 
purchase or sale contract, etc., by persons already holding valid permits for 
scientific research, public display, or enhancing the survival or recovery of a 
species or stock, is not a separate taking requiring yet another permit. 

Explanation of Amendment : In Kama, et al. v. The New England Aquarium, et. 
aL, the plaintiffs argued the MMPA prohibits the transport, sale, purchase, offer to 
purchase, offer to sell, and possession of a marine mammal without separate 
permits to '"take" the marine mammal. Under the plaintiffs' theory, each step of a 
purchase and sale transaction would require a new permit because each separate 
action is a "take". Although that suit was dismissed because the plaintiffs lacked 
standing, the MMPA requires clarification to prevent other similar suits. 

The only court which has considered the precise question of whether the term 
"take" is limited to activities in the wild reviewed the language of the MMPA and 
its legislative history, examined the agency's interpretation of the MMPA 
concurrent with its passage, and ruled that the term "take" means taking from the 
wild and does not apply to animals in captivity. 

As originally passed, the Act made it illegal to possess, sell, purchase, offer to sell 
or purchase, and transport a marine mammal only if the animal was taken in 
violation of the MMPA. During the 97th Congress, the MMPA was amended to 
make the purchase, sale, offer to purchase or sell and transport illegal regardless 
of whether the marine mammal was taken legally. That amendment was intended 
to address enforcement issues associated with subsistence takes. This change has 
led to unintended litigation, such as the case discussed above, as to whether the 
public display community needs additional permits to transfer legally taken 
animals. The proposed amendment, together with the conforming amendments, 



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returns the MMPA to its original purpose while still addressing the subsistence 
enforcement issue. 

Under our amendment, NMFS would still receive notification of movement of 
animals and institutions would still submit an annual inventory report to NMFS. 

2. Codify the existing practice of NMFS and the Fish and Wildlife Service under 

which the taking of animals from the wild is regulated by NMFS and FWS while 
their subsequent care and maintenance is regulated by the APHIS under the 
Animal Welfare Act. 

Explanation of Amendment : This amendment codifies the existing practice of the 
NMFS and the Fish and Wildlife Service under which the taking of animals from 
the wild is regulated by NMFS and FWS while their subsequent care and 
maintenance is regulated by APHIS under the Animal Welfare Act. In the NMFS 
proposal, NMFS asserts the authority to set new care and maintenance standards 
for marine mammals and begins establishing such standards. Having two, and 
perhaps three, agencies establishing marine mammal care and maintenance 
standards does not make sense when Congress and the Administration are seeking 
to streamline government and control the deficit. 

VII. Conclusion . 

The contributions of the public display and scientific research communities to the 
conservation of marine mammals and the protection of the ecosystem upon which they depend is 
chronicled in the millions of visitors who come to our facilities each year and who leave with a 
renewed dedication to marine conservation. They are chronicled in the thousands of research 
projects funded by AZA and Alliance members. And, they are chronicled in the vast sums spent 
on the rescue and rehabilitation of stranded marine mammals who would die on our beaches 
without the voluntary commitment of resources made by AZA and Alliance members. 

AZA and Alliance members look forward to continuing their efforts under the MMPA 
and respectfully request the adoption of our certain clarifying amendments. 



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4M 



r 



STATEMENT OF JOHN GRANDY, PH.D. 
VICE PRESIDENT, WILDLIFE AND HABITAT PROTECTION 
THE HUMANE SOCIETY OF THE UNITED STATES 



BEFORE THE 

HOUSE MERCHANT MARINE AND FISHERIES COMMITTEE 

SUBCOMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES 



ON MEASURES TO CONSERVE THE MARINE MAMMAL 
PROTECTION ACT 



FEBRUARY 10, 1994 



On Behalf Of: 

American Humane Association 

American Society for the Prevention of Cruelty to Animals 

Animal Protection Institute 

Council for Compassionate Governance 

Earth island Institute 

The Fund for Animals 

Humane Society International 

The Humane Society of the United States 

In Defense of Animals 

International Wildlife Coalition 

New England Anti-Vivisection Society 

Progressive Animal Welfare Society 

Society for Animal Protective Legislation 

South Carolina Association for Marine Mammal Protection 

Whale and Dolphin Conservation Society 

The Humane Society of the United States 
2100 L Street. NW, Washington, DC 20037 
(202) 452-1100 FAX (202) 778-6132 



105 



Good morning. I am Dr. John W. Grandy, vice president of Wildlife and Habitat 
Protection for The Humane Society of the United States (HSUS). I thank you for the 
opportunity to testify today on behalf of The HSUS and 14 other member organizations 
of the Marine Mammal Protection Coalition (MMPC) and our combined membership 
and constituency of over 3 million persons worldwide, regarding the issues of marine 
mammal public display and scientific research. MMPC member groups engage in 
scientific research, coordinate stranding networks, and provide interpretive educational 
programs about free-living marine mammals. The HSUS is the largest animal protection 
organization in the United States. We have ten regional offices, an educational division, 
a team of investigators, and legislative experts. We have substantial programs focused 
on providing humane stewardship for companion animals, laboratory animals, farm 
animals, and wildlife. The HSUS has recently established an international arm, Humane 
Society International, through which we will extend our programs of animal protection 
around the world. 

We appreciate the Committee's attention to this issue and look forward to working with 
you, Mr. Chairman, to preserve the principles of the Marine Mammal Protection Act 
(MMPA) of 1972 during its re-authorization process. 

INTRODUCTION 

Our position has long been that under most circumstances wild animals should exist 
undisturbed in their natural environments. Captivity of marine mammals in zoos, 
aquaria, and marine parks and lethal and invasive scientific research are essentially 
antithetical to this position. Frequently, captivity and research result in abuse, neglect, 
suffering, and premature death of individual animals. Therefore, we maintain that 
captivity of and research on marine mammals should only be undertaken for the direct 
benefit of the species and that all individual animals involved should be treated in a 
humane, professional manner where the welfare of the individual is always paramount. 

In addition, public opinion concerning human interaction with marine mammals has 
been changing. Documentaries, scientific research on free-living animals, wildlife 
photography, and films such as this past summer's "Free Willy" have encouraged and 
established a new public awareness of the complex nature of these intelligent, social 
creatures. People have begun to question, in growing numbers and in various media, the 
ethics or necessity of keeping marine mammals in captivity. The hundreds of thousands 
of calls made to the 800 number at the end of "Free Willy", as well as the proliferation 
of aquaria without live marine mammal exhibits, the closing of seasonal dolphin shows at 
many amusement parks, and the introduction of state legislation prohibiting captures of 
marine mammals in state waters and, in South Carolina, the outright prohibition of 
public display, clearly illustrate that the debate on public display is entering a new era. 



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SPECIFIC PROPOSALS 



1. The MM PA should be amended to place primary responsibility with the National 
Marine Fisheries Service (NMFS) for the care and maintenance of marine mammals in 
captivity. 

This issue is central to this re-authorization process. It is vital that primary oversight of 
marine mammals in captivity rests with NMFS. The Animal and Plant Health Inspection 
Service (APHIS) and NMFS currently share responsibility for oversight of the care and 
maintenance of captive marine mammals, with APHIS largely responsible for the 
conditions under which they are held. However, APHIS has been persistently reluctant 
to modify certain requirements (such as minimum social group size) for marine 
mammals because such requirements could then apply to all captive animal species. 
Such conflicts emphasize why it is inappropriate for APHIS, which has little expertise 
with marine mammals and an overly broad mandate, to have primary oversight of captive 
marine mammals, which have very specialized, species-specific requirements. 

In addition, APHIS has demonstrated consistently in the past that it cannot adequately 
ensure the humane treatment of captive marine mammals. Several facilities, a notable 
recent example being the Cape Cod Aquarium in Massachusetts, have been repeatedly 
certified and licensed under APHIS when conditions were clearly inadequate. The Cape 
Cod facility was finally shut down, but only when NMFS found it to be "unsatisfactory 
and inoperable". Clearly NMFS has the expertise to establish adequate standards for all 
species of marine mammals held in captivity, as demonstrated in its recently published 
proposed regulations to govern special exception permits, and should have primary 
responsibility for these animals. 

Most importantly, however, the MMPA clearly grants NMFS statutory authority over all 
marine mammals, regardless of the environment they inhabit. As NMFS has maintained, 
in its proposed regulations and in a recent lawsuit brought against NMFS by the Mirage 
Hotel in Las Vegas, captivity is a form of "take". It results in animals being placed in 
surroundings completely alien to their natural environment and being maintained in 
these artificial surroundings on a continuing basis. NMFS should therefore have 
jurisdiction over those on-going takes. Under no circumstances should APHIS, an 
agency of the U.S. Department of Agriculture, be given primary authority over any 
animals protected by the MMPA. 

2. The MMPA should be amended to prohibit the capture from the wild of marine 
mammals for public display, as well as their import and export 

The public display industry has been extolling the successes of its captive breeding 
programs for marine mammals. Indeed, most pinnipeds currently in captivity were 



107 



captive-bred and there are probably sufficient numbers and genetic diversity available 
among the captive population to sustain itself without supplementing with wild-caught 
individuals. Bottlenose dolphins (Tursiops spp.) also are breeding consistently in 
captivity and are close to self-sustaining. It is important to note that none of the species 
concerned are endangered, so their captive-breeding programs cannot be considered 
necessary for conservation. In further support of this point, facilities engaged in captive 
breeding are not actively pursuing programs designed to rehabilitate and release into the 
wild any progeny produced. We therefore question whether these programs benefit the 
species involved or promote the intent of the MMPA but regardless, we maintain that, 
by the industry's own admission, wild captures of individuals from these groups are no 
longer necessary for public display or captive breeding. 

In addition, as earlier discussed, beached and stranded animals that cannot be released 
provide a source for augmentation or replacement of captive collections of marine 
mammals. Although frequently permanently disabled (e.g. blind, deaf, or missing 
appendages), these animals can be used to educate the public just as can healthy 
individuals, although their entertainment value may be diminished. As, according to the 
industry, entertainment is not the primary goal of public display, this should not be an 
issue. In short, public display can continue as a tool for education and conservation, 
using captive-bred and unreleasable stranded animals, without capturing healthy 
individuals from intact social groups in the wild. States such as Florida recognize this, as 
indicated by the passage of a resolution asking Congress to ban captures. 

The industry maintains that because of small captive populations for all other cetacean 
species (again, most of which are not endangered), wild captures will continue to be 
necessary into the foreseeable future to maintain genetic diversity among the captive 
population. This assertion does not support the intent of the MMPA or common sense. 
If a species is not endangered and a self-sustaining captive breeding program is not 
possible without wild-caught supplementation, then it is questionable that such a species 
should even be maintained in captivity. Certainly wild captures in such a case are not 
necessary for conservation and continuing to allow them is like allowing someone to try 
to fill a bucket that obviously has a hole in it. 

For example, the four small whale species currently held in captivity include the killer 
whale, the false killer whale, the beluga, and the pilot whale. These species suffer higher 
mortality rates, reduced life spans, and lower birth rates in captivity than do populations 
in the wild. Captive killer whales experience a mortality rate more than 3 times as high 
as that observed in a well-documented wild population (7% annual mortality vs. 2% 
annual mortality). In 30 years of holding these four species in captivity in the U.S., less 
than 20 calves have survived past the first few months and are still alive today. It should 
be clear that individuals of these species cannot handle the transition from the wild to 
captivity. 



108 



We now have a high level of understanding of the social structures and behaviors of 
marine mammal species in the wild. We know that most exhibit long-term familial 
bonds and in general are socially complex, long-lived, mentally sophisticated creatures. 
Cetacean species may travel up to 50 to 100 miles a day, dive several hundred feet deep, 
and spend only 20% of their time at the surface of the water. The transition from their 
natural environment to captivity in a small concrete tank can only be unimaginably 
traumatic. A symbol of all that is wrong with removing these animals from their natural 
environment is the collapsed dorsal fin seen in most captive killer whales, probably the 
result of spending more than half of their time at the surface of their tanks. This 
phenomenon is observed in less than 1% of wild killer whales. 

The capture process itself, where animals are rounded up, netted or lassoed, or driven 
into shallow water, snatched from family and removed from the water, is incredibly cruel 
and stressful. Recent revelations concerning the terribly inhumane drive fishery capture 
method underscore the problem with allowing the removal from the wild of these 
animals. U.S. interests have been involved in subsidizing the Japanese drive fisheries, 
where hundreds of dolphins are killed to provide a handful of individuals for sale to 
marine parks and aquaria. Only prohibition of this cruel practice will guarantee that 
such abuses will end. 

The public has received the message of conservation and habitat protection. The 
message will be reinforced through various media, such as wildlife videos and interactive 
displays, as well as eco-tourism, shore-based observations, and marine parks that display 
captive-bred or stranded animals. The public, as demonstrated by recent polls in which 
as many as 70% of respondents were opposed to the capture of wild dolphins, has 
realized that snatching these magnificent creatures from their natural home, to exist in 
confinement in circumstances wholly alien to their experience, is no longer necessary for 
education and certainly not for entertainment and in itself does not support a 
conservation message. 

Concerning import and export, we advocate the outright prohibition of these practices. 
Imports may encourage foreign facilities to become an indirect source of wild-caught 
animals for U.S. facilities unwilling to weather the increasing controversy over wild 
captures. Exports increase the potential that animals will find themselves in sub- 
standard situations abroad. Certainly it is unlikely that NMFS and APHIS have been or 
will be able to adequately inspect and certify foreign facilities before granting them U.S. 
permits, given real-world personnel and budgetary constraints. 

Representative Mike Bilirakis of Florida has introduced H.R. 656, which addresses the 
issue of export of captive marine mammals. He and the co-sponsors of 656 have 
recognized the threat to the well-being of those animals that are sent out of this country 



109 



and we thank them for their efforts to rectify this situation. H.R. 656 also addresses 
issues, such as a rigorous tracking system for individual animals, that are covered in the 
proposed regulations published by NMFS, which merely emphasizes that NMFS should 
have primary authority over captive marine mammals. 



3. The MM PA should be amended to prohibit all forms of direct contact between 
humans (other than animal caretakers) and marine mammals. 

We believe that petting pools, feeding programs, and swim-with-the-dolphin programs do 
not constitute legitimate forms of "public display" and as such, these interactive programs 
should be specifically prohibited. Such programs pose unacceptable risks to the safety 
and health of both the humans and marine mammals involved. Independent studies of 
swim-with programs confirm these conclusions. Indeed, there have been a disturbing 
number of reports of aggression and sexual behavior between dolphins and humans in 
swim-with programs. Increasing numbers of injuries to participants have resulted in legal 
actions taken against program operators and have opened the door to potential litigation 
against NMFS. Regardless of the number of years in captivity or even being captive- 
bred, these are wild, not domestic, animals, who are large, powerful, and possess sharp 
teeth, and are known to exhibit aggression toward each other under various naturally- 
occurring circumstances. The potential for tragedy in forced interactions with humans is 
obvious. Interactive programs involving marine mammals contribute no additional 
educational benefits to standard display and in fact constitute pure entertainment, which 
is not the intent of the MMPA. 

4. The MMPA should be amended to prohibit the intentional feeding of marine 
mammals in the wild. 

We strongly supported the ruling by NMFS that feeding marine mammals in the wild 
constitutes a "take" under the MMPA and fully endorsed efforts by NMFS to act in the 
best interests of the animals by issuing regulations banning this disruptive practice. 
Feeding wild animals to artificially create opportunities to observe them in the wild 
fosters dependency on humans. In the case of marine mammals, it threatens to 
habituate them to the approach of boats, which could result in increased injury or 
harassment, especially if the animals begin aggressively approaching boats for handouts. 
Intentional feeding may disrupt natural foraging patterns and social interactions, and 
may introduce exotic pathogens or parasites, depending on the handling history of the 
food source. The most prudent course would be to avoid exposing wild marine 
mammals to these potential hazards, especially when it is unnecessary. The public can 
easily observe wild dolphins and manatees, the two species currently at risk, without 
luring them with handouts. 



110 



5. The MMPA should require that the disposition of beached/stranded marine 
mammals be strictly regulated. 

The MMPA is unclear about the determination of the releasability of stranded or 
injured animals. In fact, this ambiguity has allowed animals to be held captive for years 
in substandard situations by facilities lacking permits or the ability to meet permitting 
requirements. We believe that the process by which facilities receive animals and 
determine their eventual fate must be made more stringent. Under no circumstances 
should a facility be issued a permit to retain a stranded animal before that animal has 
been evaluated as to its releasability. The evaluation itself should be carefully monitored 
by federal agencies, especially when the species or stock involved is endangered, 
threatened, or depleted. We endorse the provisions for beached/stranded animals in the 
proposed regulations published by NMFS. 

6. The MMPA should be amended to prohibit invasive and lethal research on marine 
mammals unless it will directly benefit the species in the wild. 

We recognize that, despite excellent efforts, many stranded animals that are treated at 
public display facilities do unfortunately die. The bodies of these animals may provide 
data critical to scientific advancement and the study of their tissues can provide valuable 
information. However, we believe that there are very few circumstances that justify the 
killing of healthy marine mammals in scientific studies. Invasive experiments are also 
justified only under a limited set of circumstances. In both cases, we believe that such 
research should be undertaken only when its results will directly benefit the species being 
studied and no alternative, non-invasive methods exist. This may include basic research 
that increases our understanding of the physiology and/or ecology of a species. 
However, lethal and invasive research is extremely disruptive to wild populations and can 
result in the unintentional deaths of both the animals being handled and in animals 
involved in the social disruption, such as seal pups separated from their mothers when 
researchers enter a rookery area. NMFS' proposed regulations contain a definition of 
legitimate scientific research that is too broad and should be amended to limit its scope 
and the potential for abuse. We again direct the Committee to the Bilirakis bill (H.R. 
656), which contains language specifically addressing this issue, and which we fully 
endorse. 



CONCLUSION 

Because of their aquatic environment, complex social structures, and intelligence, marine 
mammals require special consideration in captivity and when interacting with humans. 
The MMPA was designed to safeguard these special considerations. We believe that the 



Ill 



above amendments will ensure that the MMPA functions as it was intended regarding 
captive marine mammals and marine mammals involved in scientific research. We 
believe that these amendments will define a new and humane relationship to these 
animals for the future. Again, thank you for the opportunity to express our views. We 
are prepared to assist the Committee in any way on these issues. 



112 



Statement by Peter L. Tyack for a Hearing on the Reauthorization 
of the Marine Mammal Protection Act conducted by the 
Subcommittee on Environment and Natural Resources of the 
Committee on Merchant Marine and Fisheries of the U.S. House of 
Representatives 



Comments on permits for scientific research 



I am a biologist on the scientific staff at the Woods Hole 
Oceanographic Institution, a private non-profit institution for 
research and education in oceanography. For the past two 
decades, I have studied the acoustic communication and social 
behavior of whales and dolphins in the wild. Since these 
animals are regulated by the National Marine Fisheries Service, 
I will comment more upon this agency than the Fish and Wildlife 
Service, which regulates several other species. Conservation 
biology is not my profession, but I hope that I can contribute 
an independent scientific perspective. I will argue that 
regulatory effort should be proportionate to risk to animal 
populations, and that ecosystem-oriented management must be 
pursued more vigorously. 



Marine mammal populations in U.S. waters are primarily 
threatened by unintentional effects of human activities. 
Overfishing may deplete marine mammal prey enough to reduce the 
carrying capacity of the environment. Chemical and noise 
pollution degrade the quality of marine mammal habitats. Ships 
and fishing gear kill or injure marine mammals by accident. 
These are serious policy issues, and we should not be distracted 
elsewhere. However, as the 1984/85 Annual Report on the Marine 
Mammal Protection Act (MMPAi puts it: "One of the most extensive 
administrative programs in the National Marine Fisheries Service 
is the permit system that authorizes the taking of marine 
mammals for scientific research and public display." This 
regulatory focus on scientific research and public display is 
completely out of balance with the relative risk these 
activities pose to marine mammals. It also penalizes the very 
activities that may benefit marine mammals. 



Let me give an example from the most endangered baleen whale — 
the northern right whale. Most of the 300 right whales left in 
the western North Atlantic carry scars from vessel collision or 
entanglement with fishing gear, and more adults die from vessel 
collision and net entanglement than any other known causes. 
Even though ships predictably kill these whales. Federal actions 
locate shipping channels in the middle of dense concentrations 
of feeding whales. Under current regulations, there are no 
preventive controls on ships or fishing gear most likely to kill 
or injure the last remaining right whales. In contrast, more 
and more controls are being placed on the scientists who 
document these problems. A group of biologists on Cape Cod risk 
their own lives to save entanaled whales. Since thev aDDroach 



113 



whales closely, the National Marine Fisheries Service required 
them to obtain permits to "take" these whales by harassment. 
The National Marine Fisheries Service took a year to issue them 
a permit. If the scientists had not continued to rescue whales 
illegally during this year, whales might have died from a lethal 
combination of lax regulation of fisheries coupled with 
over-regulation of the rescues. A Woods Hole permit application 
to track habitat use by right whales was held up for over two 
and a half years, so long that it had to be retracted. By 
ignoring the real problem and hampering its solution, the 
current implementation of the MMPA is doing more harm than good 
for right whales. 



How did this policy go so wrong? The MMPA of 1972 banned any 
taking or importing of marine mammals, with permits to be issued 
only for public display or scientific research. For commercial 
fisheries, "take" is usually construed as killing or injuring. 
However, the definition of "take" in the MMPA lumps together 
kills with harassment. Harassment is poorly understood, but 
when a scientist asks for a research permit, "take" has been 
defined to include minor behavioral reactions of negligible 
impact either to individual animals or to populations. The 
National Marine Fisheries Service devotes a significant fraction 
of its regulatory effort tracking hundreds of research permits, 
treating people who photograph an animal with similar rules as 
those who shoot one. This leads to two problems. First, most 
projects are delayed for most of a year, ruling out 
unpredictable opportunities, and discouraging many promising 
students and established scientists from working with marine 
mammals. The Scripps Institution of Oceanography has written a 
letter discouraging potential students from marine mammal 
research because of excessive government regulation. Second, 
when the National Marine Fisheries Service allocates scarce 
resources on research and display, it ignores many more serious 
problems such as the vessel collisions with right whales. 



Another example may illuminate the problems of this double 
standard. Extensive research shows that whales are disturbed by 
loud ships when they are many miles away. These results suggest 
that, under current regulations, most ships "take" thousands of 
marine mammals a year by harassment. These "takes" are 
completely predictable in many areas of high marine mammal 
density. If commercial ships operated under the same rules as 
research, they could seldom leave the harbor. The 
inconsistencies of this policy do no good for marine mammals and 
are vulnerable to challenge in court. 



There is a critical need to redefine "take" in the MMPA in a way 
that focuses effort based upon magnitude of risk to animal 
populations. I support a tiered definition separating takes 
involving death or injury from takes which might harm an animal 
or population and those which are not likely to cause harm. 
Given the past regulatory history, it may be important to 
reauire reaulators to control the most dangerous takes before 



114 

committing resources to insignificant ones. 



The purpose of permits for scientific research under the MMPA 
was to allow scientific activities that would otherwise be 
prohibited. The current permit process for scientific research 
is not inappropriate for the rare requests for lethal or 
injurious research. However, I do not support requiring permits 
for research activities that have negligible impact or that are 
not regulated for other groups. The MKPA should be amended to 
allow a general authorization for these specific research 
activities. There is no reason this should not include 
notification requirements, but requirements for extensive 
advance warning would restrict access to the unpredictable 
research opportunities that are such an important part of marine 
mammal science. 



It is less clear how to regulate research activities with an 
unknown potential to harm or harass animals. The National 
Marine Fisheries Service has devoted more effort to this gray 
area than to many nonresearch activities posing much greater 
risks to marine mammal populations, but their newly proposed 
definitions for harassment remain deeply flawed. The failure of 
the National Marine Fisheries Serva.ce to regulate harassment 
contrasts with the relative success of Institutional Animal Care 
and Use Committees to regulate the complex issues of potential 
harassment or pain to individual animals under the Animal 
Welfare Act. The Animal Welfare Act is specifically designed to 
protect individual animals, just as the MMPA is designed to 
protect populations. I would suggest that issues of potential 
harassment or pain to individual marine mammals in the course of 
research be regulated by such committees, and that regulation 
under the MMPA concentrate on risk to populations. This must 
involve regular notification to the appropriate Federal agency 
of all research potentially harassing or harming individual 
marine mammals, and Federal notification to all Care and Use 
Committees of special requirements for depleted populations or 
critical habitats. 



As a scientist, I must point out that research methods involving 
physical contact with an animal may involve less risk than other 
methods. For example, if one needed to determine the home range 
of an animal for a whole season, attaching a small tag in one 
approach might be preferable to repeated close approaches for 
photography. This issue is of particular importance because 
biopsy sampling is well documented to pose negligible risks to 
large whales and provides tissue critically needed for 
conservation issues such as stock identification and contaminant 
analysis. The wording of the MMPA should emphasize magnitude of 
risk and to determine lists of which research activities belong 
in which risk category based upon the best scientific evidence. 
This might include specific approved protocols. Some method to 
expedite the transfer of tissue whose collection involved 
minimal risk is also needed. Difficulties in shipping tiny 
samoles across international borders create a manor obstacle to 



115 



identification of marine mammal stocks, 



I must mention another area where a tiered definition of take 
must be implemented. The only exemptions from the prohibition 
on taking marine mammals that are available to activities other 
than commercial fishing, marine mammal research, and public 
display, are the small take exemption of section 101(a)(5) and 
the one year economic hardship exemption of section 101(c). If 
the same definition for taking that is currently applied to 
research were applied across the board, few sea-faring 
activities would be able to conduct business. For example, the 
only mechanism available under the MMPA to allow whale responses 
to ship noise would be for the Secretary to issue a one year 
exemption for economic hardship. Even if these noise responses 
were shown to have negligible impact, they would not be eligible 
for a small take exemption because so many whales would be 
expected to respond to the noise of each ship. 



The existing language for small take exemptions may be 
reasonable for lethal takes, although the regulatory process is 
so arcane and time consuming that only eight petitions have been 
filed. If NMFS is going to start enforcing the prohibition 
against taking marine mammals to industries such as shipping or 
underwater demolition, some more streamlined regulatory 
mechanism needs to be developed. A better solution would be to 
include all activities in the allocation of potential biological 
removals that were originally designed for commercial fisheries. 
I would suggest that takes such as minor disturbance responses 
which involve minimal risk to either individuals or populations 
should not require authorization. I suggest deleting references 
to small numbers of marine mammals for takes that involve 
negligible risk. Some middle ground must be found to regulate 
takes that might conceivably harm marine mammals. The policy 
should emphasize that the critical issue is risk to populations 
and should involve strong incentives to determine the level of 
risk. 



There is an important larger issue here. The impact of 
harassment and disturbance on populations depends upon 
cumulative impacts which are a form of habitat degradation. 
This means they are better regulated as habitat management 
problems than by attempting to regulate individual acts. While 
harassment is difficult to define in the abstract, it is easier 
to rank the significance of prey depletion, incidental take, 
contamination, or harassment for a specific population in a 
particular habitat. 



The single most important change in policy most likely to 
protect marine mammals is to develop better stock assessments to 
target populations at risk. The MMPA has required a 
continuing review of the status of marine mammal populations 
since 1972. Twentv vears later, estimates are available for 



116 



fewer than half of the whale and dolphin populations. Few 
populations are monitored closely enough to detect declines 
before they cause jeopardy. There is a clear need for a renewed 
commitment for long term population monitoring and stock 
assessment in the MMPA. 



Once depleted populations are identified, the mechanism for 
habitat management in the current MMPA is conservation or 
recovery plans. Of the 9 great whale species declared 
endangered in 1970, only 2 have conservation or recovery plans. 
While these two plans are fine, they are a drop in the bucket. 
Furthermore, while the right whale recovery plan recommends ways 
to reduce the threats posed by vessel collision and fishing 
gear, these recommendations are not enforced. Marine mammal 
protection will be better served by redirecting resources from 
extensive permitting of trivial research takes to stock 
assessment and conservation plans with some enforcement power. 
The MMPA must be updated from regulating the intentional takes 
of the whaling era to an era where a broad array of 
unintentional impacts threaten marine mammals and the ecosystems 
upon which they depend. 



117 



Testimony of Caleb Pungowiyi 

before the House Merchant Marine and Fisheries Committee 

Concerning the Marine Mammal Protection Act 

February 10, 1994 



Good morning. My name is Caleb Pungowiyi, President of the 
Inuit Circumpolar Conference and a member of the Indigenous 
People's Council for Marine Mammals. I appreciate the opportunity 
to present my testimony on behalf of Native subsistence users of 
marine mammals in Alaska, and also in Greenland, Canada, and 
Russia. 

The Indigenous People's Council for Marine Mammals (IPCMM) is 
composed of Native commissions and organizations working to 
conserve and protect marine mammal populations and Native uses of 
those mammals for subsistence and the making of handicrafts and 
clothing. The Council's members are: 

Alaska Eskimo Whaling Commission 

Alaska & Inuvaluit Beluga Whale Committee 

Alaska Sea Otter Commission 

Arctic Marine Resources Commission 

Association of Village Council Presidents 

Bristol Bay Native Association 

Eskimo Walrus Commission 

Inuit Circumpolar Conference 

North Slope Borough Department of Wildlife Management 

Pribilof Aleut Fur Seal Commission 

Southeast Alaska Native Subsistence Commission 

The Council is authorized to speak for the Alaska Native community, 
including the Alaska Federation of Natives, on marine mammal issues 
and reauthorization of the Marine Mammal Protection Act. 

I sit on the Council in my capacity as President of the Inuit 
Circumpolar Conference (ICC) . The ICC is an international 
organization that represents approximately 115,000 Inuit living in 
the Arctic regions of Alaska, Greenland, Canada, and Chukotka 
region in the Commonwealth of Independent States. The principal 
goals of the ICC are: 

1. to strengthen unity among Inuit of the region; 

2 . to promote Inuit rights and interests on an international 
level; 

3. to seek full and active partnership in the political, 
economic, and social development of circumpolar regions in 
order to promote greater self-sufficiency among Inuit and to 
ensure the growth of their culture; and 

4. to develop and encourage long-term policies which safeguard 
the Arctic environment. 



118 



Summary 

Alaska Natives have relied on marine mammals for their food, 
handicrafts, and culture for centuries. They have successfully 
managed their use of marine mammals, assuring that no more is taken 
than is needed. They have created marine mammal commissions to 
protect these uses, and to formalize Native management. 

The Native take exemption in section 101(b) of the MMPA 
recognizes these factors by allowing Native take to be regulated 
only by Alaska Natives unless a species is found to be depleted. 
The exemption has worked well over the past 22 years, and should 
not be amended. There are, however, at least three ways in which 
the MMPA can be improved as it pertains to Alaska Native uses of 
marine mammals: 

1. The work of Native communities and commissions has been 
increasingly constrained by the lack of funding. I recommend 
that Congress authorize an appropriation directly to the 
Native community so that it may extend and expand its work at 
data collection, self-regulation, and development of 
comanagement mechanisms. 

2. The potential threats to marine mammals from pollution of 
their ecosystem is of great concern. Additional funding is 
needed to study these threats — with full and equal 
involvement of Alaska Natives — and mechanisms should be 
added to protect marine mammal habitat. 

3. At present, Alaska Natives and their relatives in Russia, 
Canada, and Greenland are not allowed to import marine mammal 
products that they own or that they received or are bringing 
as gifts. This simply makes no sense; the MMPA should be 
amended to allow importation of personal items and gifts. 

Detailed testimony 

I will divide my testimony into five parts: the importance of 
uses of marine mammals to Native nutrition and culture; the 
effective steps being taken by the Native community to ensure 
conservation of marine mammal species; the value of a comanagement 
approach to management of marine mammals in Alaska; the effects of 
pollution on marine mammals and the Alaska Natives who rely on them 
for food; and suggestions for amendments to strengthen the MMPA, 
especially with respect to issues that would affect Native 
subsistence uses. 



The importance of marine mammals to Alaska Natives 

As the Congress has consistently recognized over the past 22 
years, the use of marine mammals by Alaska Natives (and those in 
Canada, Greenland, and Russia) is an integral part of their way of 
life. Marine mammals of all kinds, notably including walrus, polar 



119 



bear, sea otter, beluga whales, bowhead whales, fur seals, sea 
lions, and a variety of species of seals, are a key source of food 
for Alaska Natives living throughout coastal Alaska. Marine 
mammals supply a preferred fresh food for Alaska Natives throughout 
the year, as well a source of barter and trade with inland Natives 
in exchange for land mammals that may not be available to those who 
dwell on the coast. Marine mammals also figure prominently in 
Native stories, art, traditions, and cultural activities. 

Alaska Natives make a wide variety of handicrafts and clothing 
from the marine mammals they harvest. They sew parkas, hats, 
gloves, and footgear to keep themselves warm. They make carvings 
and decorations for their homes and for gifts to their friends and 
relatives. They barter these items for other items through 
traditional trading networks throughout Alaska. And they sell what 
they make to Natives and non-Natives alike. 

The sale of handicrafts made of marine mammal by-products has 
become a crucial source of income in many remote Native villages. 
Jobs are scarce there, and many have limited ways to make money 
other than government assistance and the occasional seasonal job. 
The limited cash that carvers and sewers can make from their hand- 
made clothing and handicrafts therefore is vital in providing at 
least some cash in the villages to sustain the subsistence hunting 
and fishing way of life. 

I want to emphasize two things in this respect. First, in 
keeping with the conservation ethic upon which all Native cultures 
are fundamentally based, Alaska Natives do not take marine mammals 
just to make handicrafts from the ivory and skin. Rather, they 
take marine mammals for subsistence purposes and for the use of the 
non-edible parts for clothing and handicrafts. This leads to my 
second point: the production of handicrafts is not commercial 
activity, but a continuation and adaptation to a market economy of 
an ancient Native tradition of making and then bartering 
handicrafts and clothing for other items that Natives need. 

As this short description of the use and importance of marine 
mammals makes clear, the taking and use of marine mammals is a 
fundamental part of Native culture, whether it be Yupik, Inupiag, 
Indian or Aleut. It is so fundamental that Alaska Natives are 
committed to doing whatever it takes to preserve and protect their 
rights to harvest these animals according to the cultural ways. 

Alaska Natives are not the only ones with a long-standing 
tradition of reliance on marine mammals. Their relatives in 
Greenland, Canada and Russia are egually dependent on these 
resources, and rely on them in much the same manner: for food and 
clothing, and as a source of income. I urge the Committee to keep 
this important point in mind as it evaluates how best to continue 
to protect uses of marine mammals by all indigenous peoples, 
regardless of where they live. 



120 



Self-regulation of marine mammals by Native peoples 

The use by Alaska Natives of marine mammals for literally 
thousands of years has made Native peoples wise stewards of marine 
mammal populations. Native cultures throughout Alaska and other 
countries have developed a comprehensive set of rules, largely 
unwritten, governing the use of marine mammals. These rules are 
premised on conservation, the avoidance of waste, and respect for 
the fish and animals that are used. For the most part, they have 
worked quite well in regulating Native uses. Unfortunately, most 
of what is heard or known about Native take are those few who 
behave wastefully. 

Because success in hunting requires a good understanding of 
the behavior of marine mammals species, and of the environment in 
which they operate, Alaska Natives have also developed a 
comprehensive body of knowledge about these animals and their 
habitat. That knowledge is holistic in nature, looking at 
particular species in the context of their inter-relationships with 
other species and the environment in which they all live. It also 
is based primarily on experience and the teachings of elders. 
Relatively little comes from books or university courses. 

Taken together, these rules and the indigenous knowledge on 
which they are based have protected all of the species on which 
Natives rely for subsistence purposes. No species of marine 
mammals has been placed in a depleted, threatened or endangered 
status by Native take. Indeed, as the following table 
demonstrates, Native take of marine mammals represents only a very 
small percentage of their overall populations: 



Species 


Estimated 


Average Annual 


RiuuL 




Population 


Native 


Harvest 




Walrus 


200-230,000 


3,000 




1.3-1.5 


Sea otter 


150-300,000 


1,100 


(1993) 


0.7 


Polar bear 


5,000 (low) 


80 




1.6 


Sea lions 


80-85,000 


548 




0.7 


Beluga 


20,000 (Northwest) 


350 




1.8 


Bowhead 


7-10,000 


47 




0.7 


Bearded seal 


350,000 


1,500 




0.4 


Ringed seal 


1,250,000 


4,500 




0.4 


Spotted seal 


225,000 


2,800 




1.2 


Harbor seal 


Not available 


2,867 




N/A 



It might be noted in this respect that Native take often pales in 
comparison to other sources of take. For example, a study prepared 
for NOAA found that 85% of the take of sea lions from 1956 to 1990 
came from sources other than Natives, principally commercial 
fisheries. Trites & Larkin, "The Status of Steller Sea Lion 
Populations and the Development of Fisheries in the Gulf of Alaska 
and Aleutian Islands," (July 1992), p. 49. 



121 



The lack of any negative impact on marine mammal populations 
by Native take should come as no surprise. The conservation ethic 
of Native culture is deeply engrained, and taught to Native 
children from the time that they are able to understand it. And 
aside from the importance of learning these rules as a means of 
continuing traditional Native practices, it obviously is in the 
interests of Native peoples to ensure that they do not take too 
many animals, for they want the populations tc remain healthy so 
that they can serve as a continuing source of food and culture. 

Alaska Natives believe strongly that Native traditions, 
practices, and culturally-taught rules are sufficient to protect 
and conserve all marine mammal species used by Native peoples. But 
Alaska Natives also understand that they live in a very different 
setting than that in existence prior to western contact. Western 
culture has made substantial and dramatic inroads on traditional 
Native beliefs and practices. 

Native uses also must now contend with federal and state law, 
and the agencies which implement and enforce those laws, as well as 
with the expectations of interest groups, especially the animal 
rights groups who, to put it charitably, are very concerned with 
and often opposed to, Native uses of marine mammals. While they 
profess an understanding of Native cultural institutions, many of 
these agencies and organizations demand from Alaska Natives that 
they show in concrete terms how Alaska Natives in fact work to 
conserve marine mammal species. 

Faced with the dual demands of protecting and preserving 
Native cultural practices and of satisfying the desires of others 
to show concrete examples of Native self-regulation, Alaska Natives 
have formed a number of marine mammal commissions whose purpose is 
to provide institutional mechanisms for the protection of both 
Native culture and marine mammal species. I would like to give you 
a brief description of the activities of the commissions, and of 
some efforts under way in some Native villages. (I have attached 
to my testimony pertinent materials regarding these activities.) 

Alaska Eskimo Whaling Commission . 

The organization of the AEWC began in the fall of 1977, after 
the International Whaling Commission imposed a zero bowhead whale 
harvest quota on the Eskimo people of northern Alaska. The action 
was taken without consultation with the people who had hunted the 
animal for centuries, and despite the universal recognition that 
the whale's depleted status was not the result of Native 
subsistence harvests. Though they could not have been faced with 
a more serious threat to the continued existence of their 
traditional culture, the Eskimo people did not act rashly, but 
quickly recognized the need to organize. They formed a Commission 
which included representatives from all of the harvesting 
communities, and overcame great odds to become an effective and 
respected voice in the management of the bowhead whale. Through a 
memorandum of agreement with NOAA which defines and shares 
responsibilities and duties regarding research, regulation, and 



122 



enforcement, the AEWC has addressed management questions ranging 
from harvest levels, equipment and safety, to humane and non- 
wasteful hunting practices. The Commission has acted decisively to 
discipline the rare hunter who does not comply with all of the 
harvest regulations it has promulgated with the approval of NOAA. 
Today, it is engaged in a program to continue its extensive 
educational and weapons development projects aimed at increasing 
the efficiency, safety, and humaneness of whale harvests under the 
IWC quota. 

Alaska and Inuvialuit Beluga Whale Committee . 

A recent article in Arctic . June 1993, pp. 134-37, summarizes 
well the work of this important commission: 

The Alaska and Inuvialuit Beluga Whale Committee was formed in 
1988 to facilitate and promote the wise conservation, 
management and utilization of beluga whales in Alaska and the 
western Canadian arctic. The membership of the Committee 
consists of representatives from beluga whale hunting regions 
and communities in Alaska and the Mackenzie River Delta in 
Canada, U.S., federal, state and local government agencies, 
and others, such as researchers and technical advisors. Only 
representatives from beluga whale hunting communities vote on 
matters related to hunting, while the committee as a whole 
votes on other issues. Harvest monitoring programs are 
planned and coordinated at the spring meetings, implemented 
during the whaling season by hunters and others and reported 
upon during the fall meeting. To date, the AIBWC has: 1) 
established beluga whale research priorities; 2) coordinated 
or assisted with the collection of samples for genetic, 
contaminant and basic biological studies; 3) provided funding 
for DNR studies; 4) commented on federal actions (e.g., 
relating to oil and gas exploration activity) with the 
potential to affect beluga whales, beluga whale habitat or 
beluga hunting; 5) collected the most complete harvest data 
ever available for Alaska; 6) produced a newsletter 
highlighting important marine mammal issues for coastal 
residents of Alaska; and 7) sponsored the attendance of 
committee members at meetings of the International Whaling 
Commission. The AIBWC recently ratified its draft Alaska 
beluga whale management plan, a counterpart to the existing 
plan for beluga whale management in the western Canadian 
Arctic, and has initiated discussion of a joint Inupiat- 
Inuvialuit plan for management of the shared Beaufort sea 
beluga whale stock. 

Alaska Sea Otter Commission . 

The ASOC was formed in 1988 to provide a united voice to 
promote Native participation in resource policies affecting sea 
otters and their uses. Since then, the ASOC has begun developing 
locally-based sea otter management plans. The Commission is 
comprised of six commissioners representing the six regions of 
Alaska in which sea otters are harvested by Alaska Natives — these 



123 



span from southeast Alaska to Bristol Bay in southwestern Alaska, 
including Kodiak Island, Prince William Sound and the Alaska 
Peninsula and the Aleutian Islands. On February 1, 1994, the 
Commission entered into a Memorandum of Agreement with the Fish and 
Wildlife Service and the Alaska Department of Fish and Game. The 
MOA sets out the respective responsibilities of the three 
organizations concerning the management of sea otters. The 
Commission is currently in the process of developing locally-based 
regional management plans for each of the six regions represented 
by the Commission. In January, 1993, the ASOC hired a marine 
mammal biologist to develop the regional management plans in 
consultation with tribal leaders, sea otter hunters, and skin 
sewers. The goal of the management plans is to develop harvest 
guidelines and to assure biologically and ecologically sound plans 
that conform to traditional Native regulatory practices. A 
Scientific Advisory Council has been convened by the ASOC to assist 
with the plans. At this point, the research necessary to draft 
plans for two regions has been completed, and plans for the four 
remaining regions will be completed by December, 1995. In addition 
to developing the locally-based, regional sea otter management 
plans, the ASOC continues to work towards informing Alaska Natives 
about existing federal iaws regarding sea otters, and to assure 
there is no wasteful take of sea otters. 

Eskimo Walrus Commission . 

The Eskimo Walrus Commission was formed in 1978 by villages 
throughout western, northwestern and northern Alaska for a variety 
of purposes related to protection of subsistence uses of walrus by 
Alaska Natives: 

1. to encourage self-regulation of walrus hunting and 
management of walrus by Alaska Natives; 

2. to provide education and information to the public; 

3. to assure the wise utilization of all parts of the walrus, 
including the encouragement of better food preservation and 
improved means of harvest; 

4 . to represent marine mammal hunting communities in reviewing 
and commenting on governmental and other actions which might 
affect marine mammals; 

5. to involve users in the decision-making process and in 
scientific research programs; and 

6. to encourage the federal government to cooperate with other 
nations in studies, enforcement, and other involvements in the 
well-being of marine mammals. 

The EWC has 19 commissioners who act on behalf of the walrus- 
hunting communities. In 1980, the Commission assisted in the 
creation of the Pacific Walrus Technical Committee, which is 



124 



composed of representatives of the Commission, Fish and Wildlife 
Service and Alaska Department of Fish and Game to discuss walrus 
related issues, disseminate information among the three agencies, 
and make recommendations to the EWC. Later, in 1987, EWC, FWS, and 
ADFG entered into a formal Memorandum of Agreement for the joint 
management of walrus; under that MOA, the three agencies are 
proceeding on conservation/management planning for walrus. The EWC 
also has been quite active in promoting non-wasteful uses of 
walrus; in pursuit of this goal, it has cooperated with FWS in the 
prosecution of the few hunters who behave wastefully. 

Polar bears . 

While there is no formal polar bear commission at this time, 
Alaska Natives have expended considerable efforts in polar bear 
management. Perhaps the most significant of these is the signing 
of a cooperative agreement between the North Slope Borough and the 
Inuvaluit Game Council in Canada regarding the management and 
harvest of the Beaufort Sea polar bear population. That agreement 
sets limitations on the harvest of polar bears by Alaska and 
Canadian Natives, and serves as a vehicle for comprehensive 
management and protection of that population; it has been very 
successful in all respects. Alaska Natives who use the Chukchi Sea 
polar bear population are now in the process of emulating that 
agreement by working with Russian Natives to develop a joint 
agreement for the Chukchi Sea population. The intent here is to 
arrive at both a Native-only agreement, and to work with the U.S. 
and Russian governments to develop an international, four party 
agreement respecting the use and management of the Chukchi Sea 
stock. The Native community is also monitoring FWS' proposed polar 
bear habitat protection policy. And it is in the process of 
evaluating whether and how best to develop a formal polar bear 
commission. 

Village initiatives . 

Many villages in Alaska have come to realize the value of 
formally promulgated ordinances regulating the take of fish and 
wildlife for subsistence purposes. Several of these ordinances 
pertain to marine mammal hunting. For example, the village of 
Gambell on St. Lawrence Island has a comprehensive marine mammal 
hunting ordinance, which governs the take of marine mammals by 
village residents, sets up a mechanism for monitoring take, and 
contains specific enforcement policies and proceedings. Three 
other villages in northern Norton Sound are now working 
cooperatively on a joint regulatory approach for the take of beluga 
whales, by which each village will promulgate ordinances governing 
their own members and enter into a cooperative agreement to 
recognize those ordinances with respect to uses of beluga whales by 
the members of the other villages. Other villages are working on 
regulatory approaches of their own, a trend that I believe will 
increase significantly over the next few years, especially if 
adequate funding can be found. 



125 



The value of the Native commissions . 

The formation and work of the commissions discussed above is 
meant to satisfy several goals. First, the commissions operate to 
provide information to and advocacy on behalf of Native marine 
mammal users. This provides a formal means for Alaska Natives to 
pass on their beliefs to future generations, and to help remote 
villagers understand the myriad of rules and regulations with which 
they must contend. 

Second, the commissions work to develop regulatory structures 
with the villages, thereby formal structures to supplement (not 
replace) existing practices to protect marine mammals species. 
These regulatory structures also provide the concrete mechanisms 
sought by government agencies and outside interests, demonstrating 
in a more western context precisely how Native rules and 
regulations are applied and enforced in the villages. 

Finally, the commissions provide a vehicle for comanagement of 
marine mammal species between the government agencies on the one 
hand and Native users on the other hand. "Comanagement" has become 
an important concept in Alaska, referring as it does to the actual 
sharing of power and responsibility for marine mammal management in 
a way that best protects the interests of the Native peoples, the 
government, and the marine mammal species themselves. It is so 
important that I would like to discuss its value in greater detail. 



Comanagement 

The idea of shared decision-making over marine mammal 
research, regulation, and enforcement has taken on considerable 
urgency in recent years, as Alaska Natives have increasingly had to 
deal with federal and state hunting regulations that often are 
inconsistent with Native customs and traditions, to the point that 
those regulations may require hunters and fishers actually to 
violate their own cultural rules. The custom and tradition of 
Alaska Natives is characterized by two key principles. First, as 
a general rule, Native subsistence users take only fish and game as 
needed, and they take it when it is available. Second, the take is 
shared with their family and neighbors. The standard management 
tools of seasons and individual bag limits generally are 
inconsistent with these customs. For example, a fall hunting 
season will severely restrict the custom and need to obtain fresh 
meat during the winter; and an individual bag limit of one animal 
per hunter hardly will allow that hunter to provide for his family, 
his sister's family, and his parents. 

Another standard management tool is the use of methods and 
means restrictions, generally for the purpose of conservation (such 
as prohibitions on fish traps) , enforcement (sealing and tagging 
requirements) , and some notion of fairness (not shooting from a 
snowmachine) . While unintentional, some of these restrictions 
place Native hunters in a difficult position, for they may require 
them to violate their cultural rules. For example, with some 



79-705 0-94-5 



126 



exceptions, state and federal regulations require that the skull of 
a brown bear be brought back to the village to be sealed and tagged 
— yet the custom in many Eskimo and Indian villages is that the 
skull is to be left in the field as a sign of respect for the bear. 
Other restrictions impair the efficiency of Native hunters to no 
apparent purpose. Efficiency is a key element of subsistence 
hunting. The rule prohibiting a hunter from shooting a caribou 
from a snowmachine makes little sense to the hunter in deep snow 
who wants to use the handlebar as a gun rest. 

The Canadian government has faced similar issues with respect 
to Native take in northern Canada. The Canadians' response has 
been to create mechanisms that incorporate traditional knowledge 
and Native ways into the regulation-making process, with Natives 
participating as decision-makers, rather than as interest groups 
commenting on government proposals. My own observations confirm 
that the Canadian's co-management approach generally has been quite 
successful there. 

Co-management has also been tried, to a lesser degree, here in 
the United States. Two notable examples are the work done with the 
Alaska Eskimo Whaling Commission and with migratory bird hunters on 
the Yukon-Kuskokwim Delta. The federal government and the AEWC 
have entered into an agreement which basically provides that the 
AEWC will have the primary responsibility for regulating whale 
hunting and for enforcing the regulations — the government's role 
is to step in and enforce the law if someone violates the AEWC's 
enforcement orders. The Yukon-Kuskokwim Delta Goose Management 
Plan is a landmark agreement, by which the federal government 
agreed not to enforce the prohibition on spring and summer hunting 
of migratory birds, if Native hunters agreed not to hunt certain 
species of birds. The Plan contains a variety of provisions 
setting out how enforcement will be carried out, including joint 
efforts at implementation and notification to the villages of 
possible violations. 

These approaches have been very successful, but they 
unfortunately are exceptions to the general approach in Alaska. 
Alaska Natives have been told that the phrase "co-management" is 
not acceptable to federal officials in Alaska, and that the term 
"cooperative management" is to be used instead. The Native 
experience is that this really means: "We manage and you 
cooperate." That is, the Native role largely is confined to one of 
consultation with federal agencies, with little actual authority 
being recognized or granted to Native villages or organizations. 
And when Natives attempt to present their traditional knowledge to 
federal agencies, that information usually is dismissed as 
"anecdotal" and hence not as reliable as that provided by 
university-trained scientists. 

The Alaska Native community believes that the federal 
government needs to be more receptive to the validity of 
traditional knowledge, and the value of co-management as a means of 
assuring better information about and management of fish and 
wildlife resources in Alaska. Meaningful Native involvement in 

10 



127 



both research and regulation development is vital if the 
regulations are to make sense in a Native context, and if they are 
to be effective in assuring conservation of the resources. This 
goes beyond consultation to an actual sharing of research and of 
power and responsibility for fish and wildlife management. 

The call for co-management and an incorporation of the Native 
world view is one that that has received increasing recognition 
throughout the world, as the key means for assuring a meaningful 
role for indigenous people in the management and preservation of 
natural resources and the protection of their culture. It has 
worked in Canada, and in the limited fora allowed in Alaska. I 
strongly urge the Congress to do what it can to promote and 
facilitate comanagement as it evaluates amendments to the MMPA. 

Pollution of marine mammal habitat and its impacts on marine 
mammals and the health of indigenous people in Alaska and the 
circumpolar North 

In recent years, it has become increasingly clear that there 
may well be substantial threats to marine mammal populations from 
pollution of their habitat, principally by heavy metals. 
Accumulation of heavy metals in marine mammals in turn may pose 
threats to the Alaska Natives who rely on them for food. While the 
evidence is not yet conclusive, there are some disturbing trends. 

The beluga whale is reported to be one of the most polluted 
animals in the world, yet it is one of the preferred foods of my 
people. It has accumulated vast amounts of mercury and selenium in 
its organs and meat, and ever-growing amounts of organochlorines 
such as DDT and PCBs. Heightened levels of organochlorines have 
also been linked by European researchers to the decline in polar 
bear reproduction on the islands of the North Atlantic. And 
according to the Fish and Wildlife Service, "Cadmium concentrations 
remained higher [in walrus livers and kidneys] than levels thought 
by EPA to interfere with mammalian organ function (13 mg/kg). M 
Fish and Wildlife Service, "Heavy Metal Concentrations in Liver and 
Kidney Tissues of Pacific Walrus," April, 1993. The levels in 
those walrus organs averaged 166.5 mg/kg with some as high as 457.3 
mg/kg. Ibid. 

We have been told by the Epidemiologist of the Alaska 
Department of Health and Social Services that there are no reported 
incidents of disease related to overexposure of cadmium. It is 
good to know that we are showing no overt signs of cadmium 
poisoning. But the Indian Health Service has pointed to an 
increased level of clear cell cancer of the kidney in Alaska Native 
males. Is there a link? What should we do about the fact that we 
are eating walrus livers and kidneys with such elevated levels of 
cadmium? 

The Fish and Wildlife Service has taken tissue samples of 
walrus, but lacks the funding to analyze them to determine whether 
the elevated levels of cadmium are causing harm to the walrus 

11 



128 



because their kidneys are not working as they should. At least FWS 
has the raw data on walrus. There are no data or programs to 
screen polar bears to know if levels of contaminants are going up 
or down in those animals. We do not even have good data on the 
number of polar bears in Alaska, Canada or Russia. 

As we all know, the health of marine mammals and of Alaska 
Natives is inextricably tied to the health of the environment. 
What is being done to the ocean in which these animals live? 
Protecting marine mammals is the intent of the MMPA, but with our 
oceans acting as dumping grounds or final repositories of what we 
put in the air, these important species of mammals are being 
contaminated. The minimal data we have tell us this; we need much 
more, and tools to combat the pollution, if we are to manage 
healthy stocks of all of the marine mammals. 

Suggested amendments to the MMPA . 

I have several suggestions to make to the Committee with 
respect to changes in the MMPA. The first, and most important, is 
one that I most strongly and respectfully recommend that the 
Committee not do: make any amendment that will or could weaken the 
current Native take exemption in section 101(b) of the Act. That 
exemption has worked very well to date; it purposefully and 
properly gives Alaska Natives the sole responsibility for 
regulating their own take so long as it is not wasteful, provided 
that a species is not found to be depleted; and it helps preserve 
Native customs and traditions by allowing Natives to follow their 
traditional practices free of intrusive and often inappropriate 
federal regulation. 

I want to emphasize in this respect the concern of the entire 
Native community that Congress not take any action that could have 
negative ramifications for Native take in the future. This 
includes proposals that would replace reliance on the concept of 
Optimal Sustainable Population with new concepts or matrices to 
evaluate the health of a species. At present, as with the entire 
MMPA, the Native take exemption is premised on OSP as the measure 
of the health of a species. Any effort to change this approach in 
any context will undoubtably have the unintended effect of 
establishing a precedent for using the new concept or matrix as a 
basis for determining when it would be appropriate for the federal 
government to regulate Native take. 

We also would view with concern any efforts to establish 
acceptable levels of take of marine mammal populations. This may 
well lead to actual allocation of marine mammal take among user 
groups, which not only will mean the end of the Native take 
exemption, but long and bitter fights over allocation that serve no 
one's interests. 

I do have three suggestions to improve the MMPA from the 
standpoint of Alaska Natives. First, as I have previously 
discussed, the Native community is hard at work collecting data on 

12 



129 



marine mammal populations and health, participating in federal, 
state and private research, monitoring take, developing ordinances, 
and enforcing both those ordinances and their traditional rules. 
These efforts have been stymied to a large extent by a lack of 
adeguate funding. I accordingly suggest that the Congress 
authorize the appropriation of funds for the purpose of further 
building and sustaining Native institutional capacities for self- 
regulation of Native take of marine mammals. In particular, such 
funding would enable the development of formal codes and ordinances 
and of data bases, and would also support the work of Native marine 
mammal commissions as they work for both self-regulation and 
comanagement relationships with the federal and state governments. 
The funds should not be made available through the standard 
granting processes, but made directly to the Native community 
through the IPCMM. The Council, in turn, would decide how best to 
allocate the funds. 

I believe that the funding I have requested will strengthen 
the Native exemption by helping to assure that Native self- 
regulation is as effective as possible. I want to add, however, 
that this funding should not be used to replace existing funds now 
being provided to specific Native commissions and organizations, 
but rather to supplement those funds so that Native management will 
become even more effective. 

My second suggestion relates to protections against impacts on 
marine mammals and their habitat. Alaska Natives have noted with 
increasing alarm that heavy metal levels in marine mammals have 
grown substantially over the past few years. This is due to 
substantial pollution in the ocean, largely from overseas, but also 
from industrial operations under the control of the United States. 
Important habitat areas are also directly threatened by some 
development activities, such as barge traffic and oil and gas 
development. And as is all too evident from the ongoing collapse 
of the Bering Sea, the food supply of marine mammals is being 
drastically depleted, posing threats not only to them, but to many 
other species of birds and other animals that rely on the fish. 

The MMPA as it is now written does not directly address these 
issues. It should. I urge the Congress to develop mechanisms that 
protect not only marine mammals, but also the ecosystem of which 
they are a part. In addition, adeguate funding must be made 
available to gather the necessary data — and to allow Alaska 
Natives full and egual participation in research design, data 
collection, and interpretation of the results. 

Finally, Alaska Natives and their relatives in other countries 
have faced substantial difficulties from the MMPA's flat ban on 
importation of marine mammal products. If an Alaska Native travels 
to visit his or her relatives in Greenland, Canada or Russia, 
wearing clothing that is made of marine mammal products, he or she 
cannot bring this or her clothing back into the United States, 
because of this ban. Similarly, he or she cannot bring back a gift 
made of marine mammal parts. Nor may a Native inhabitant of these 
three countries bring their own clothing or gifts to this country. 

13 



130 



These prohibitions make little sense. I accordingly suggest 
that Congress amend the MPPA to allow Alaska Natives to bring home 
marine mammal products that they own or which they were given as 
gifts, and to allow Natives from Greenland, Canada and Russia to 
bring marine mammal products into this country for their own use in 
this country, or for purposes of giving a gift or using them in a 
cultural program. To protect against abuses of such an exception, 
I further suggest that the amendment be limited to prohibit the 
importation of marine mammal products by Native inhabitants of 
Greenland, Canada or Russia for purposes of sale. 

To be perfectly frank with the Committee, I do not believe 
that this limitation really is necessary. Natives in other 
countries are as responsible in their management of marine mammal 
species as Alaska Natives; and the making of handicrafts for sale 
in the United States would be an important source of supplemental 
income for Natives in Canada, Greenland, and Russia who also badly 
need the money. However, I am sensitive to the fact that some in 
this country might view allowing imports for sale in this country 
as leading to wasteful take by non-Alaska Natives for purely 
commercial purposes. While I believe that this is an inappropriate 
and unfair assumption to make, I also know that the entire issue of 
sale is a controversial one. I have accordingly limited the 
request on imports so as to avoid unnecessary and undue 
controversy, in the hope and expectation that the specific problems 
facing Alaska Natives and their relatives in other countries can be 
easily resolved. 

Thank you for this opportunity to testify. I will be happy to 
answer any questions that the Committee may have. 



14 



131 

WILEY, REIN & FIELDING 

1776 K STREET, N.W. 

WASHINGTON, D. C. 2000S 

(202) 429-7000 



JOH N A. HODGES 
I202J 429-3377 



FAC5IMI 
(202) 429- 
Ex 248349 



STATEMENT ON BEHALF OF 

THE MARINE MAMMAL COALITION 

BEFORE 

THE HOOSE COMMITTEE ON MERCHANT MARINE AND FISHERIES 

SUBCOMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES 
ON REAUTHORIZATION OF THE MARINE MAMMAL PROTECTION ACT 

February 10, 1994 



My name is John A. Hodges. I am a partner with the law 
firm of Wiley, Rein & Fielding in Washington, D.C. I am 
General Counsel of the Marine Mammal Coalition, a consortium 
of marine mammal public display and scientific research 
institutions. 

The Marine Mammal Coalition appreciates this opportunity 
to present its position concerning reauthorization of the 
Marine Mammal Protection Act (MMPA) . 

Public display and scientific research institutions play 
an essential role in marine mammal conservation. They should 
be supported, not discouraged. This view is shared by a vast 
majority of the American people and is crystallized in 
Congressional policy in the MMPA, which creates a special, 
favorable category for these beneficial activities and 
provides for simplified, nonburdensome procedures for them. 
None of these institutions can afford prolonged, wasteful, 
crippling administrative procedures, which divert scarce 
resources from activities Congress has declared to be 
critically important. Nor can the government afford 
inefficient and wasteful use of its scarce resources. 

Congress, as part of the reauthorization of the MMPA, 
should reinforce its policy 

(1) that public display and scientific research are to 
be fostered, not hindered; 

(2) that permits for these beneficial activities be 
granted based on simplified, nonburdensome 
procedures; and 

(2) that the National Marine Fisheries Service (NMFS) 
should not adopt rules that relate to marine 



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- 2 - 

mammals in captivity — an area that is subject to 
extensive regulation by the Animal and Plant Health 
Inspection Service (APHIS) under the Animal Welfare 
Act. 

A recent NMFS proposal, 58 Fed. Reg. 53320 (Oct. 14, 
1993), flies in the face of this Congressional intent. It 
also results in an inefficient and wasteful use of scarce 
governmental resources. 

We note that APHIS has stated that the NMFS proposed 
rules 

"specifically attempt to allow the AA [Assistant 
Administrator for Fisheries, NMFS] authority over the 
AWA [Animal Welfare Act] . The AA does not have the 
authority to summarily overrule the AWA." 1 

APHIS also points out that the NMFS proposal 

"authoriz [es] the AA to practice veterinary medicine 
without a license or a degree in veterinary medicine. 
This is in violation of the State Practice Acts, which 
govern the practice of veterinary medicine." 2 

Therefore, Congress should reject this NMFS proposal. 

Below, we first discuss Congressional policy favoring 
marine mammal public display and scientific research and then 
discuss how the NMFS proposal violates Congressional intent. 



1 APHIS, Comments on NMFS Proposed Rules on Protected 
Species Special Exemption Regulations, Jan. 28, 1994 
(hereinafter "APHIS Comments"), S I. 

2 APHIS Comments APHIS, S B. See also , e.g. . APHIS 
comment on proposed S 216.37(c) ("This section is especially 
disconcerting in that it appears that the AA can control 
veterinary treatment. The veterinary profession is regulated 
by the appropriate State Practice Acts, State Veterinary 
Medical Boards, and appropriate FDA and DEA regulations. Even 
the MMPA does not grant the NMFS the power to regulate 
veterinary medicine. This also undermines a cornerstone in 
the AWA regulations, allocating authority to the attending 
veterinarian."); APHIS comment on proposed S 216.37(1) (2) 
("Again, the AA presumes to dictate the actions of the 
attending veterinarian and/or requires a facility to change 
its established displays and/or colonies if the AA doesn't 
agree with it. We cannot support this."). 



133 



- 3 - 

I. CONGRESSIONAL POLICY FAVORS MARINE MAMMAL 
PUBLIC DISPLAY AND SCIENTIFIC RESEARCH 

A. Marine Mammal Protection Act 

The MMPA, originally enacted in 1972, resulted largely 
from public concern about the thousands of marine mammal 
mortalities from such activities as sealing, whaling, and 
some commercial fishing activities. Its basic intent is to 
conserve wild animal stocks and the ecosystem. 

At the same time, Congress recognized the indispensable 
role of zoological institutions in raising public awareness 
of marine mammals and intended not to inhibit these 
institutions from obtaining the small number of animals they 
need for their beneficial purposes. 3 Congress also 



Congress recognized the important role of public 
display institutions in relation to marine mammals as 
"resources of great international significance, esthetic and 
recreational as well as economic," 16 U.S.C. S 1361(6). 
During Congressional deliberations on the MMPA, Congressman 
Pryor said that "the intent of this basic legislation was not 
to deprive those particular institutions of bringing in a 
proper number of animals for the public use." Legislation on 
Preservation and Protection of Marine Mammals: Hearings 
before the Subcomm. on Fisheries & Wildlife Conservation of 
the House Comm. on Merchant Marine & Fisheries, 92d Cong., 
1st Sess. 83 (1971). Senator Hollings stressed that without 
observing marine mammals in oceanaria the "magnificent 
interest" in marine mammals will be lost and "none will ever 
see them and none will care about them and they will be 
extinct." Ocean Mammal Legislation: Hearings Before the 
Subcomm. on Oceans & Atmosphere of the Senate Comm. on 
Commerce, 92d Cong., 2d Sess. 266 (1972). "[I]f it were not 
for these organizations and the public exposure you have on 
these animals in the first place, these matters wouldn't be 
brought to the attention of the public." Id. 555. Senator 
Cranston emphasized the "valuable educational service 
performed by these institutions." Id. 552-53. Senator 
Chiles stated that he gave "strong support towards 
recognizing the oceanarium exhibition industry in this 
legislation." Id. 164. Senator Gurney took note of the 
"advent of seaquariums and oceanariums" that have brought 
home "a much greater awareness of . . . ocean mammals." 118 
Cong. Rec. S25291 (July 25, 1972). Senator Tunney 
anticipated "very little difficulty" for public display 
institutions as a result of the MMPA. Id. S25270. 



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- 4 - 

recognized the important role of scientific research in 
relation to marine mammals. 4 

Over 100 million people annually visit public aquariums, 
oceanariums, and other zoological institutions in the United 
States. These institutions are central to the effort to 
stimulate public interest in, education about, and support 
for marine mammal conservation. 5 They are involved in 
networks sponsored by NMFS to assist stranded marine mammals. 
They also play a vital role in the life and development of 
their communities and states. They educate the public, are a 
source of wholesome recreation, provide significant 
employment, and stimulate local economies by generating the 
expenditure of hundreds of millions of dollars by visitors. 

In recognition of the essential role that marine mammal 
public display and scientific research institutions play in 
carrying out the purposes and policies of the MMPA, Congress 
created a special, favorable provision for them under the 
MMPA. MMPA permits for public display and scientific 
research are a special exception to the Act's moratorium on 
taking and can be obtained pursuant to simplified 
requirements (16 U.S.C. § 1371(a)(1)). This regime for 
public display and scientific research is regulated under a 
regime separate from the regimes applicable to other 
activities such as commercial fisheries (S 1371(a)(2)), and 
periodic "waivers" (S 1371(a)(3)(A)). The MMPA is 
administered in relevant part by NMFS within the Department 
of Commerce. 



4 The MMPA recognizes that "there is inadequate 
knowledge of the ecology and population dynamics of such 
marine mammals and of the factors which bear upon their 
ability to reproduce themselves successfully." 16 U.S.C. § 
1361(3) . 

5 Dolphins do well in public display institutions. 

As stated in a recent federal study, "[c]urrent data indicate 
that survival rates in captive dolphins may be similar to 
and, in some cases, possibly better than survival rates in 
free-ranging dolphins." U.S. Department of Commerce, NMFS, 
Final Environmental Impact Statement on the Use of Marine 
Mammals in Swim-With-The-Dolphin Programs, April 1990, p. 68. 



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- 5 - 



Congressional policy in favor of public display and 
scientific research was reiterated and reinforced in 1988, 
when Congress reauthorized the MMPA. 6 



Thus, the House Committee report on the 1988 
Amendments stressed that 

"[e]ducation is an important tool that can be used 
to teach the public that marine mammals are 
resources of great aesthetic, recreational and 
economic significance. It is important, therefore, 
that public display permits be issued to entities 
that help inform the public about marine mammals, 
as well as perform other functions. 



Permits may continue to be issued to public 
and privately owned zoological parks and 
oceanariums, as well as other qualifying 
institutions." H.R. Rep. No. 970, 100th Cong., 2d 
Sess. 33-34 (1988). 

Similarly, the Senate Report stated that 

"[e]ffective public display of marine mammals 
provides an opportunity to inform the public about 
the great aesthetic, recreational, and economic 
significance of marine mammals and their role in 
the marine ecosystem." S. Rep. No. 592, 100th 
Cong., 2d Sess. 29 (1988). 

The Senate Report went on to say that 

"[t]he Committee recognizes that the recreational 
experience is an important component of public 
display and that public display has served a useful 
educational purpose, exposing tens of millions of 
people to marine mammals and thereby contributing 
to the awareness and commitment of the general 
public to protection of marine mammals and their 
environment." Id. 

In the reauthorization, Congress also added enhancement 
of survival or recovery of a species or stock to the 
activities covered under Section 1371(a)(1), thus reaffirming 
that the items in this section are categories considered by 
Congress to be beneficial to marine mammals. Marine Mammal 
Protection Act Amendments of 1988, 5 5(c), Pub. L. No. 100- 
711, 102 Stat. 4765 (1988). 



136 



- 6 - 

This Congressional intent that NMFS procedures for 
public display and scientific research be simple and non- 
burdensome was recently reconfirmed by the Court in Animal 
Protection Institute v. Mosbacher . 799 F. Supp. 173, 179 
(D.D.C. 1992): 

"Congress also contemplated that there would be a 
limited number of instances in which an inconsequential 
quantity of animals could be taken or imported for 
beneficent purposes, such as for scientific research, 
stock preservation, or, as here, for public display. 
Consequently, in § 1371(a)(1) it gave the Secretary 
authority to grant a modest dispensation in such cases 
from the most onerous constraints of the MMPA - the 
absolute moratorium - without awaiting the outcome of 
more elaborate administrative proceedings the 
regulations might require for more destructive assaults 
upon the population of a species." 

B. Animal welfare Act 

In contrast to the MMPA, the Animal Welfare Act of 1975 
regulates animals that have already been taken ( i.e. . are in 
captivity). The Animal Welfare Act, as amended in 1979, 
contains provisions dealing exclusively with marine mammals 
in zoological institutions, establishing strict, 
comprehensive standards for the size and nature of 
enclosures, environmental quality, food handlinq, transport, 
and humane treatment (hereinafter referred to collectively as 
"husbandry") . The marine mammal section of the Animal 
Welfare Act is the strongest animal welfare legislation ever 
enacted by Congress. 

The Animal Welfare Act is administered by APHIS. All 
facilities that display marine mammals must be licensed — 
and thus certified — by APHIS. 

II. NMFS PROPOSAL VIOLATES CONGRESSIONAL INTENT 

The NMFS proposal flies in the face of this 
Congressional intent. It directly contravenes the 
requirements of the MMPA and imposes unconstitutional 
burdens. It ignores recent court decisions construing the 
MMPA. 

Contrary to the basic thrust of the MMPA, the NMFS 
proposal would impose the most onerous regulatory regime 
under the statute. The proposal would inflict crushing 
administrative and financial burdens. The information 
required in applications would be massive. After a permit 



137 



- 7 - 

was granted, the permit holder would be subject to further 
authorizations and notifications before it could exercise the 
permit. It would become bogged down in onerous permit 
conditions. It would have to file numerous, duplicative 
reports. Burdensome new fees would be imposed for a number 
of activities; this would violate the requirement of the MMPA 
that fees be charged only for issuance of permits and that 
the fees be reasonable. 16 U.S.C. S 1374(g). And there would 
be charges for surety bonds, which are not authorized under 
the MMPA. 

A study by Arthur D. Little, Inc. demonstrates that the 
proposal, if adopted, would impose approximately $32.2 
million of costs on public display institutions in the first 
five years. This figure does not take into account the cost 
to scientific research institutions (other than scientific 
research carried out by public display entities) and to the 
government. This figure also does not take into account 
other burdens such as the litigation that would inevitably 
flow from the proposal, the diversion of institutions' 
energies to dealing with administrative burdens, and the loss 
of flexibility. 

The bulk of the new burdens flows directly from the 
proposal's violation of the MMPA with respect to the scope of 
NMFS authority. Based on a bizarre and novel interpretation 
of the term "take" that is contrary to its own longstanding 
interpretation, NMFS now claims jurisdiction over marine 
mammals in captivity and uses its new interpretation to 
justify a mountain of proposed regulations of marine mammals 
in captivity. For example, standards for captive care and 
maintenance, qualifications of staff, design of facilities, 
groupings of marine mammals in institutional settings, space 
requirements, etc. 

This interpretation directly violates the MMPA. As held 
recently by the Court in Mirage Resorts. Inc. v. Franklin . 
CV-S-92-759-PMP (D. Nev. , Nov. 24, 1993), the term "take" in 
the MMPA is confined to activities in the wild and does not 
cover activities concerning marine mammals in captivity. The 
Court went on to hold that activities relating to marine 
mammals in captivity fall within the purview of the APHIS 
under the Animal Welfare Act. Given the declared 
unlawfulness of the purported underpinning of so much of the 
NMFS proposal, the proposal must be rejected. 

The proposal directly contradicts a holding of the Court 
in the Animal Protection Institute decision, namely that 
Congress did not intend that public display and scientific 
research be subject to a "consistency" requirement concerning 
the marine mammal programs of countries from which marine 
mammals are imported. Ironically, this NMFS proposal would 



138 



- 8 - 

have the effect of banning the importation of marine mammals 
even though importation would improve their condition. And, 
as indicated previously, the proposal violates the further 
admonishment of the Court (see page 6, supra ) that Congress 
intended that NMFS procedures be simple and nonburdensome. 

The proposal violates the MMPA and the Constitution by 
voiding the rights of persons who possess or wish to possess 
marine mammals. For example, only "facilities" could hold 
permits for marine mammals; others would lose their rights to 
marine mammals, including marine mammals that they now hold. 
This violates the MMPA, which allows "persons" to have 
permits, 16 U.S.C. § 1374(c)(1), and takes such persons' 
property without due process and without just compensation. 

Permit holders would have to renew their permits every 
five years. That obligation would exist despite the fact 
that the permit had already been exercised. If a permit were 
not renewed, the possessor of the marine mammals would lose 
his rights to the animals he possesses. This would violate 
the terms of the MMPA, which allows a person to possesses a 
marine mammal once it has been lawfully collected. See . 16 
U.S.C. § 1372(a)(3). The proposal in this regard is also an 
unconstitutional taking of property. 

The proposal exceeds the boundaries of the MMPA with 
respect to educational programs. It violates Congress's 
admonishment that NMFS not become involved in regulating the 
content of educational programs. See . 16 U.S.C. S 
1374(c)(2); H.R. Rep. No. 970, 100th Cong., 2d Sess. at 34 
(1988) . NMFS would even prevent entities from selling 
certain products such as photographs of marine mammals except 
in restricted circumstances. Such regulation violates the 
First Amendment rights and is an unconstitutional taking of 
property. 

The proposal directly violates the statutory exemption 
of pre-Act animals from the requirements of the MMPA. 16 
U.S.C. S 1372(e) . 

The proposal would also authorize the Assistant 
Administrator for Fisheries to practice veterinary medicine 
without a license or a degree in veterinary medicine, in 
violation of State Practice laws governing the practice of 
veterinary medicine. 

The proposal seeks to regulate exports of marine mammals 
despite the fact that the MMPA does not govern exports and 
the MMPA does not have extraterritorial applicability, United 
States v. Mitchell . 553 F.2d 996 (5th Cir. 1977). 



139 



- 9 - 

The proposal would authorize inspection of facilities 
without a warrant, in violation of the MMPA, 16 U.S.C. § 
1377, and the Constitutional guarantee against unreasonable 
searches and seizures. NMFS would even have the unfettered 
discretion to call on private persons to conduct the 
inspection. 

The proposal would adopt the extraordinary concept of a 
"captive stock" of marine mammals. The MMPA intends that the 
concept of stocks relates to marine mammals in the wild, not 
in captivity. See , e.g. . 16 U.S.C. SS 1361(1), (2). The 
proposal would thus pave the way for NMFS management of 
marine mammals in captivity, which violates Congressional 
intent. 

III. CONGRESSIONAL RELIEF IS WARRANTED 

Despite the Congressionally-mandated simplicity of 
procedures for obtaining public display and scientific 
research permits and the small number of animals taken for 
these purposes, the NMFS proposal would make obtaining such 
permits a bureaucratic nightmare contrary to Congressional 
intent, wasteful of federal resources and debilitating to 
zoological institutions. 

The Marine Mammal Coalition believes that legislative 
action is necessary to restore common sense to the regulatory 
scheme. Congress should reinforce Congressional intent to 
have permits issued for the number of animals necessary for 
public display and scientific research in an expeditious and 
simplified manner. Congress should also eliminate intrusion 
by NMFS into animal husbandry matters, which are properly 
within the jurisdiction of APHIS. Congress should squarely 
reject the pending NMFS regulatory proposal. The Marine 
Mammal Coalition looks forward to working with Congress to 
accomplish these important goals. 



140 



Hilton Waikoloa Village 
69-425 Waikoloa Beach Drive 
Kamuela. HI 96743 
(808)885-1234 




Testimony of Dolphin Quest 

before the 

House Merchant Marine and Fisheries Committee 

February 10, 1994 

Dolphin Quest, located at the Hilton Waikoloa Village on the Big 
Island of Hawaii, is pleased to submit testimony on the 
reauthorization of the Marine Mammal Protection Act (MMPA) . 
We applaud the Committee for it's action on one of our Nation's 
most important environmental protection laws. 

Dolphin Quest shares this Committee's view on the need to protect 
the marine ecosystem, and is wholly committed to improving the 
future well being of our marine environment through education, 
conservation and research. Indeed, this Committee saw as 
fundamental to protecting marine mammals and the marine ecosystem 
the use of public display facilities to educate the public at 
large on the need to preserve and protect our valuable marine 
resources. 

The goals of public display facilities are concomitant with that 
of Congress in enacting the MMPA. Among those goals are: 

8 To help ensure that there are opportunities for the public 
to learn about marine mammals (including depleted, 
endangered or threatened species) . 

£ To enhance public appreciation for and understanding of the 
need for marine mammal conservation both in the United 
States and worldwide. 

$ To contribute to an improved, scientific understanding of 
the physiology, ecology and population dynamics of marine 
mammals, including the facts which bear upon their ability 
to reproduce themselves successfully and to survive amidst 
the growing threats to their existence. 

1 To inform the public about the benefits of research, 

education and conservation programs of marine mammals, both 
in public display facilities and in the wild. 

s To encourage the formulation, dissemination and continued 

development of professionally recognized and age-appropriate 
education and conservation programs focusing on marine 
mammals. 



141 



• To provide meaningful recreational experiences that will 

encourage the public to seek further learning opportunities 
regarding marine mammals. 

Dolphin Quest supports the MMPA and does not believe it is in 
need of major modification. However, we have a unique 
perspective of the Act and urge the following issues and 
amendments be considered during the reauthorization: 

I Amend the Congressional findings to recognize the value 
of public education and scientific research by public 
display institutions in enhancing the conservation of 
marine mammals. 

1 Clarify that public display includes interactive 

exhibition. Scientific studies and real world practice 
show that people learn more, and retain it longer, when 
the learning process is interactive. Interactive 
programs should be included in public display programs 
where appropriate. 

8 Amend Section 3 of the MMPA by adding "in the wild" before 
the period in paragraph 13. This change will clarify NMFS ' 
authority under the MMPA, make it consistent with the 
original intent of Congress in passing the legislation, and 
underscore the mandate given to NMFS by Congress to direct 
NMFS' resources and efforts toward the very serious threats 
that wild populations of marine mammals face. It will also 
enable NMFS to continue to govern takes in the wild, 
regulate activities involving beached and stranded marine 
mammals, and will allow NMFS to continue its current 
inventory and tracking data-base. 

i Clarify that persons who already have a public display 
permit do not need yet another permit to (a) transfer 
marine mammals already in captivity between their own 
facilities or (b) offer to sell, offer to purchase, or 
sell, purchase or transport marine mammals already in 
captivity to another facility which already has a 
marine mammal public display permit for the species 
involved. 



These changes clarify the statute, make the MMPA more consistent 
with the original intent of Congress in drafting the legislation, 
and fully recognize the value that interactive and other public 
display facilities have in our society. 

To this end, Dolphin Quest's education programs, scientific 
resources, financial and logistical support for research, as well 
as the overwhelming impact that its public programs have on 
participants' awareness and concern for dolphins, illustrate the 
many ways that public display organizations make significant 
contributions to their communities and to the conservation of the 
marine environment. 



142 



Established by two marine mammal veterinarians, one of Dolphin 
Quest's primary goals is to provide an interactive learning 
experience for the public, which inspires appreciation for marine 
mammals and concern for the conservation of our marine 
environment. Dolphin Quest has provided an opportunity for more 
than 26,300 children to learn about dolphins through its publicly 
available interactive education programs; more than 6,000 school 
children with a chance to learn about the importance of 
preserving their local marine resources through a full day 
education field trip experience; more than 220 educators with the 
opportunity to attend Dolphin Quest's teacher work shops; 
and more than 62,000 adults with an opportunity to learn first 
hand about dolphins. 

To illustrate to this Committee the impact and importance of 
interactive learning which can be provided by public display 
facilities, attached is a statistical summary of questionnaires 
which were distributed to Dolphin Quest program participants 
between December 1988 and September 1993. It is interesting to 
note that 91.1% of the respondents state that the educational 
value and personal impact of their experience was greater than 
books, magazines, newspapers, television programs and nature 
movies. Additionally, 99.2% believe that an interactive program 
such as Dolphin Quest will inspire people to actively support 
environmental issues. Also attached is a statistical summary of 
questionnaires completed by teachers participating in Dolphin 
Quest education programs. 

Public display facilities also fulfill their commitment to marine 
conservation by participating in or funding scientific research, 
participating in marine mammal stranding and convalescence 
programs and other scientific community activities. Since 1989, 
Dolphin Quest and the Hilton Waikoloa Village have generated over 
$405,000 in vital funding for important marine education, 
conservation and research. A large portion of these funds have 
been used to support university level field research and 
educational programs. Through the non-profit Waikoloa Marine 
Life Fund, established by Dolphin Quest in 1989, individuals and 
corporate America have the ability to contribute to scientific 
research. In addition, biological samples obtained voluntarily 
through behavioral husbandry training from Dolphin Quest dolphins 
have assisted scientists in the study of dolphin immune and 
reproductive physiology. In 1991, Dolphin Quest also purchased a 
$10,950 computer system capable of analyzing dolphin and whale 
vocalizations for researchers studying cetacean acoustics in 
Hawaiian waters. This computer system is the beginning of an 
acoustic laboratory which will function as a base of operations 
for many cetacean acoustic studies. 

In conclusion, Dolphin Quest, as part of the modern oceanarium 
and zoological community, takes seriously the responsibility 
associated with the public display of marine mammals. Because 
public display facilities provide people with a first hand 
experience and education, the future well-being of marine mammals 
and their environment are more certain due to an informed and 
inspired society choosing to take part in marine conservation. 



143 



Hilton Waikoloa Village 
69-425 Waikoloa Beach Drive 
Kamuela, HI 96743 
(808)885-1234 




DOLPHIN QUEST QUESTIONNAIRE 

12/9/88 - 9/30/93 

Summary of Statistics 

Discussion 

One of Dolphin Quest's primary goals is to provide an interactive learning experience for the public which 
inspires appreciation for marine mammals and concern for the conservation of our marine environments. In an 
ongoing effort to monitor our effectiveness in realizing this goal, Dolphin Quest continually gathers the following 
input from individuals who have participated in our programs. 

9021 Questionnaires were completed and returned to Dolphin Quest between December 1988 and September 
1993 Individuals participating in Dolphin Quest programs were given the questionnaire upon completing their 
Dolphin Encounter. An average of 29% of the questionnaires were returned for compilation which provides a 
statistically significant representation. 

Not every respondent answered every question. Percentages were tabulated based on the number of responses 
to each specific question. For example, in Question #8 there were 8980 "yes" answers plus 41 "no" answers 
makes a total of 9021 responses to that question. To get the percentage of "yes" answers, 8980 was divided by 
9021 and multiplied by 100. Percentages are then rounded up or down to the nearest percent: 

8980/9021 = 0.995455 X 100 = 99.5455% = 99.5% 

Question 1 : Was your Dolphin Quest experience a positive one? 

Yes 100% No 0% 

Question 2: Do you feel that the dolphins enjoyed the interaction? 

Yes 99.7% No 3% 

Question 3: Do you feel that the dolphins were treated with respect, care, and sensitivity? 

Yes 100% No 0% 



144 



Question 4: Prior to your Dolphin Quest experience, what exposure to dolphins have you had? Please Check 
all that apply: 

Observation in the wild 40 9% Nature movies/TV 84.0% 

Lectures/Courses 11.1% Other 4.8% 

Professional Work 1.4% Books/Nwspr/Magzn76.3% 

Oceanarium 86 5% 

Question 5: Please compare the educational value and overall personal impact of your Dolphin Quest 
experience with the following: (If you have not experienced one of the following use 
"NA") 

The educational value and overall personal impact of my dolphin experience was... 

89.6% Greater than 6 6% Equal to 3.8% Less than Nature movies/TV 

90.5% Greater than 6 5% Equal to 3 0% Less than Lecture/Courses 

92.6% Greater than 5.4% Equal to 2.0% Less than Book/Nwspr/Magazine 

89.6% Greater than 7.4% Equal to 3.0% Less than Observation in the wild 

Question 6: Was information regarding marine mammal conservation presented in your dolphin Program? 

Yes 99.1% No 0.9% 

Marine mammal conservation issues are always presented during Dolphin Encounters, it is 
significant that 99 1% of participants are clearly hearing this vital information. The personal, 
interactive format of the Dolphin Quest encounter is highly effective in focusing participants' 
attention on the education and conservation information presented. 

Question 7: Did your knowledge about dolphins increase through the encounter program? 

Yes 98.4% No 1.6% 

Question 8: Would you recommend that such interactive programs continue as a means to increase public 
sensitivity and appreciation of dolphins and dolphin concerns? 

Yes 99.5% No 0.5% 

Question 9: Do you believe that an interactive experience such as Dolphin Quest, will inspire people to actively 
support environmental issues? 

Yes 99.2% No 0.8% 



145 



SAMPLES OF COMMENTS FROM DOLPHIN QUEST QUESTIONNAIRES 



•"We were at the Hyatt doing a location inspection for our 1994 seminar. Dolphin Quest was the 
greatest experience the hotel had to offer and is one of the main reasons I will be bringing my group there 
in 1994." 

•"We loved it so much, we are already looking ahead to our next visit."*"It was a very good experience!! 
I loved it and would do it again anytime." 

•"I thought the entire experience was excellent and I commend the Hyatt for helping support the 
program. Both the dolphins and the staff really appear to enjoy what they are doing. This is a great way 
to increase awareness of marine life and environmental issues." 

•"I loved the experience. It was very enjoyable and educational. Dolphin Quest was our sole purpose for 
visiting this island and this hotel." 

•"This was truly a high point in my life, it's been a dream for me since I was a child. Thank you for 
protecting this wonderful species." 

•"The dolphin experience was a wonderful, unique opportunity which should be continued to inform 
others about our friends in the sea." 

•"This was a highlight in my hfe! Almost a religious experience. Thanks for the time you have taken to 
educate us!" 

•"The trainers really seemed to love the dolphins and did their best to make it a positive experience for 
us. I thoroughly enjoyed it and am sure it will be my fondest memory of Hawaii." 

•"This was a wonderful experience. It made my vacation. The dolphins are so beautiful." 

•"It was absolutely incredible, Thank you for the wonderful experience." 

•"This was truly a wonderful experience. I would highly recommend this to anyone. Words can't express 
what a great time this was." 

•"A special thank you to all of you. This is a very unique experience and one my husband and I will 
treasure with our vacation memories Thanks again and great job." 

•"We would not have come to the "Big" island had it not been for the Dolphin Quest at the Hyatt 
Waikoloa!!" 



146 



Hilton Waikoloa Village 
69-425 Waikoloa Beach Drive 
Kamuela. HI 96743 
(808)885-1234 




"DISCOVER DOLPHINS" TEACHER QUESTIONNAIRE 
1/1/91 - 5/31/92 

Summary of Statistics 
6/4/92 

Discussion 

Teachers were given a short questionnaire when their class completed the "Discover 
Dolphin!" education program. Approximately 50% of the teachers took the time to 
complete these evaluation forms and mail them back to us. Many classes also sent thank 
you letters, poems, stories, and art work. 

RATINGS: 

Percentages were tabulated based on the number of responses to each specific question. 
Each percentage number was carried only to the tenth position; nothing was rounded off. 
Not every respondent answered every question. 

QUESTION 1: Do you feel it was a valuable educational experience to participate in the 
"Discover Dolphins" educational program which consisted of four components: 

directed teaching/discussion Yes 100% No 0.0% 

activities/choosing time Yes 100% No 0.0% 

.film/slides Yes 100% No 0.0% 

dolphins/lagoon with trainers Yes 100% No 0.0% 



QUESTION 2: Was the content appropriate to your grade level? 

teaching/discussion Yes 100% No 0.0% 

activities/choosing Yes 100% No 0.0% 

film/slides Yes 100% No 0.0% 

dolphins/lagoon Yes 100% No 0.0% 



QUESTION 3: Was the allotted time suitable to learning? 

teaching/discussion Yes 100%. No 0.0% 

activities/choosing Yes 100% No 0.0% 

film/slides Yes 100% No QM> 

dolphins/lagoon Yes _Z2%_ No_21%_ 

Comments indicated that teachers and students enjoyed the dolphin program so much they 
would have preferred it to be longer. 



147 



QUESTION 4; Did your students enjoy the "Discover Dolphins!" education program? 
Yes 100% No 0.0% 



QUESTION 5: Are your students better informed about marine mammal conservation 
issues because of this program? 

Yes 100% No O0% 



• Questions 6,7,8 and 9 are relevant for program development purposes. We are including 
the results for your review. 

QUESTION 6: Are the follow up activity suggestions of benefit to you? 

Yes 100% No 0.0% 

(Dolphin Quest provides two pages of suggestions for classroom learning activities to 
reinforce the marine science lessons taught in the "Discover Dolphins!" field trip program.) 

QUESTION 7; Is this field trip part of a larger instructional unit in the classroom? 

Yes 93% No 7% 
If yes, what is the main focus of the study unit? answers varied 
What other curriculum components are used in this unit? 

books 68% films 36% work sheets 57% activities 54% 

chapter in text book 39% other 32% 



QUESTION 8: Would you be interested in borrowing educational videos and other 
instructional materials to enhance your marine science curriculum at school? 

Yes 100% No 0.0% 



QUESTION 9: Would you be interested in attending a teacher training workshop about 
marine mammals? 

Yes 100% No 0.0% 



148 




STATEMENT OF ROBERTA. DEWEY 

DIRECTOR, HABITAT CONSERVATION DIVISION 

DEFENDERS OF WILDLIFE 

ON 

POLAR BEAR CONSERVATION 

AND REAUTHORIZATION OF THE 

MARINE MAMMAL PROTECTION ACT 

FOR 

THE SUBCOMMITTEE ON 

ENVIRONMENT AND NATURAL RESOURCES 

MERCHANT MARINE AND FISHERIES COMMITTEE 

U.S. HOUSE OF REPRESENTATIVES 

MARCH 10, 1994 

ON BEHALF OF 

DEFENDERS OF WILDLIFE 

AND 
THE WILDERNESS SOCIETY 



At the invitation of the House Committee on Merchant Marine and Fisheries, 
this statement is being submitted on behalf of Defenders of Wildlife and The Wilderness 
Society for inclusion in record of the February 10, 1994 hearing on the Marine Mammal 
Protection Act held by the Subcommittee on Environment and Natural Resources. The 
statement focuses on the need for Congress to amend the Marine Mammal Protection 
Act to provide the U.S. Fish and Wildlife Service (FWS) with affirmative authority to 
protect polar bear habitat. The United States is obligated to protect polar bear 
ecosystems, especially denning, feeding and migration areas, under Article II of the 
Agreement on the Conservation of Polar Bears, an international treaty signed by the 
U.S. in 1973. 

Defenders of Wildlife is a national conservation organization with over 80,000 
members. Polar bear conservation issues, especially those relating to habitat protection, 
have long been a high priority of Defenders. For several years we have served on an 
informal advisory team established by the FWS in conjunction with the preparation of 
the Conservation Plan for the Polar Bear in Alaska , a final version of which should soon 
be released by the FWS. Defenders also submitted comments on a recent FWS proposal 
to issue regulations allowing the incidental take of polar bears during oil and gas 
exploration and development activities in the Beaufort Sea. Concerns expressed by 
Defenders regarding the potential impact of the proposed regulations on U.S. 
compliance with the Agreement on the Conservation of Polar Bears helped prompt the 
FWS to announce its intention to develop the Polar Bear Habitat Conservation Strategy. 
Although pleased by FWS plans to develop this Strategy, Defenders of Wildlife shares 
concerns expressed in written testimony submitted by the FWS and the Marine Mammal 
Commission regarding the current limits of FWS legal authority to fully implement an 
effective habitat protection regime. 



1244 Nineteenth Street. NW ♦ Washington, DC 20036 ♦ 202-659-9510 FAX: 202-833-3349 



149 



Recent Developments Concerning Polar Bear Habitat Protection 

Several recent developments have helped to underscore the need for Congress to 
clarify the FWS' authority to protect essential polar bear habitat. On November 16, 
1993, the FWS announced plans to develop a Polar Bear Habitat Conservation Strategy 
(58 Fed. Reg. 60402) (Polar Bear Strategy).' The Polar Bear Strategy, if well designed 
and fully implemented, has the potential to be an effective means of safeguarding 
essential polar bear habitat. It can also assure that the United States acts in full 
accordance with the habitat protection mandate contained in the Agreement on the 
Conservation of Polar Bears. Finally, an effective Polar Bear Strategy would serve as a 
model for other Arctic nations, which collectively have the responsibility of safeguarding 
the world's polar bear populations. 

Congressional action to provide the FWS with additional authority to protect 
polar bear habitat could not come at a more important time. Apart from the need to 
clarify the legal basis for an effective Polar Bear Strategy, the Department of the Interior 
and the State of Alaska continue to allow substantial oil and gas leasing in the waters off 
the coast of northern Alaska. In recent years, respected individual scientists, the Marine 
Mammal Commission and the FWS have all expressed concern about the potential 
impacts of oil and gas activities on polar bear populations. Finally, an exhaustively 
researched and comprehensive legal review, completed for the Marine Mammal 
Commission just a few months ago, concluded that the FWS lacks affirmative authority 
to regulate polar habitat under the MMPA. 

Biological Considerations in Protecting Habitat 

Polar bears inhabiting the U.S. Arctic are divided into two overlapping 
populations. Both populations are located in the Arctic Ocean, adjacent to Alaska's 
northern coast. The northern, or Beaufort Sea, population is estimated to be 1,800 
individuals. The western, or Bering-Chukchi Sea, population includes about 3,200 
animals. 2 Individuals in these populations spend most of their lives on pack ice well off 
shore from the coast of northern Alaska. Bears in the Chukchi population make 
extensive north-south migrations in the United States and Russian Territories. In the 
Beaufort Sea, polar bears make extensive east-west movements between the United 



1 In a subsequent Federal Register notice (58 Fed. Reg. 68659) issued on December 28, 1993, the FWS 
referred to the Strategy as a "Polar Bear Habitat Protection Strategy." 

2 M. Beattie, Testimony Before the House Subcommittee on Environment and Natural Resources 
(February 10, 1994). 



150 



States and Canada. 3 Open water or active ice areas which persist throughout winter and 
early spring are preferred hunting and feeding areas for polar bears, which eat primarily 
ringed seals. These open water areas are called "polynyas" and run parallel to the 
coastline. 4 

Maternity denning habitat is especially important to protect because, as noted by 
the FWS, this is "where reproductive success can most easily be altered." 5 Pregnant 
female polar bears typically build maternity dens in October or November, give birth to 
one or two cubs in December, and remain inside the den until March or early April. 
During this period, the new born cubs depend on the den and their mother for 
protection. Successful rearing requires a relatively undisturbed denning environment 6 
The coastal plain of the Arctic National Wildlife Refuge and Russia's Wrangel Island 
are two areas known to be especially important polar bear denning habitat of the United 
State's two populations of polar bears. In the Beaufort Sea, the FWS has found that 
43% of radio collared pregnant females come on shore to den within the Arctic National 
Wildlife Refuge. 7 This represents a significantly higher concentration of polar bear dens 
than would be expected if dens were distributed evenly across the coast. Apart from the 
fact that Wrangel Island is an especially important denning area for members of the 
Chukchi Sea population, less is known about other preferred denning locations for that 
population. 

Current Threats to Polar Bear Habitat 

The protection of key polar bear ecosystems, especially denning, feeding and 
migration areas, from industrial activities is vital to the long-term conservation of U.S. 
polar bear populations and to the fulfillment of U.S. treaty obligations. As the FWS 
recently noted: "Human activities in the Arctic, particularly those related to oil and gas 
exploration and development, may pose risks to polar bears and other wildlife." 
Moreover, the Marine Mammal Commission expressed concern about the impact of oil 



3 FWS, Draft Conservation Plan for the Polar Bear, 13 (December, 1993) ("FWSPjan"). 
' I. Stirling, Polar Bears , 63 (1988). 

5 FWS Plan at 17. 

6 Steven Amslrup & Douglas DcMastcr, Polar Bear , in Marine Mammal Commission, Selected Marine 
Mammals of Alaska 45 (1988). 

7 FWS Plan , at 18. 

8 FWS Plan , at 18. 



151 



and gas activities in a 1989 report. 9 Further, in 1991 congressional testimony, polar bear 
expert and Marine Mammal Commissioner Jack Lentfer noted: "Any new activity that 
adversely affects denning would likely decrease cub survival and thereby lower 
recruitment and cause the population to decline." 10 In commenting on proposals to 
permit oil exploration and drilling on Alaska's coastal plain, Mr. Lentfer added: "A 
prohibition on oil and gas development on the refuge is especially necessary in order to 
protect polar bears during the denning period." 11 While the Chukchi and Beaufort Sea 
populations appear stable, the fact that polar bears have low reproductive rates and are 
easily disturbed by the noise, sights and smells of human activities make them highly 
susceptible to population crashes. 

The level of oil exploratory activity in the Arctic Ocean waters off the coast of 
northern Alaska has been relatively low in recent years. Over the next five years, 
however, the level of oil and gas company activity may increase as exploration and 
development continues and more state and federal lands and waters are offered for 
lease. Oil industry documents recently cited by the FWS estimate that, in the Beaufort 
Sea over the next five years, 28,000 miles of seismic exploration and 2-19 exploratory 
wells are planned for the open-water, and 7,000-10,000 miles of seismic exploration and 
5-15 exploratory drilling operations are planned on the coastal plain and ice-covered 
waters. 12 The FWS has noted that winter activities "have a far greater possibility of 
having a detrimental impact on the polar bear," 13 yet the incidental take regulations 
issued on November 16, 1993 for the Beaufort Sea cover oil and gas exploration, 
development, and production year-round. 14 Moreover, as the FWS has pointed out: 
"Future oil discoveries, if determined to be economically viable, could change the level 
of activity." 15 Rising oil prices or a major find in the Chukchi or Beaufort Sea could 
dramatically increase the level of oil and gas activity in the region and directly increase 
the risk to polar bears and their habitat. 



* Marine Mammal Commission. Workshop on Measures to Assess and Mitigate the Adverse Effects of 
Arctic Oil and Gas Activities on Polar Rears (1989). 

10 J. Lentfer, Testimony Before the House Subcommittee on Fisheries and Wildlife Conservation and 
the Environment (June II, 1991). 

"]± 

12 58 Fed. Reg. 60405 (199.1). 

" 58 Fed. Reg. 60406 (1993). 

' 4 58 Fed. Reg. 60402 (1993). 

15 FWS Plan, at 18. 



152 



Risks to Polar Bear Denning Habitat 

Research has shown that polar bears are especially vulnerable during denning. 
Because of their low reproductive rate, successful denning is crucial to the well-being of 
polar bear populations. Human disturbance can cause female bears to abandon their 
dens, an action likely to result in the death of their cubs. There are a number of 
documented instances of polar bears emerging prematurely from their dens after being 
disturbed. In fact, one such disturbance occurred in the Arctic Refuge in 1985. 16 In 
that case, vehicles supporting an exploratory oil well were the source of the disturbance. 
Oil company helicopters, ships, road construction and traffic, seismic surveys, drilling and 
oil transport activities are all potential sources of denning disturbance. 

Risks to Polar Bear Feeding and Migration Routes 

In addition to the harm caused by disrupting denning activities, oil and gas 
exploration activity may also disturb polar bear feeding and migration patterns. Polar 
bears may be harassed by aircraft, ships and other vehicles. Bears may be forced to 
avoid favored feeding areas and migration routes, or, alternatively, be attracted by the 
sights and smells of human activity, thus increasing the possibility of dangerous human- 
bear encounters. In addition, polar bear habitat can be also be damaged or destroyed by 
dumping, dredging, drilling, and construction of platforms, pipelines, roads, and support 
facilities. 

Oil Spills 

The polar bear, its food, and its habitat could be severely impacted by acute and 
chronic oil-spills. According to the FWS, "Bears which have been fouled by oil may 
suffer thermo-regulatory problems, ingest oil, and may exhibit other detrimental effects 
such as inflammation of the nasal passages or central nervous system. Bears that contact 
oil are likely to die." 17 Although the FWS may believe that the probability of a major 
spill is low, the agency has admitted that the impact of such a spill on polar bears and 
their Arctic ecosystem would be substantial. 18 Furthermore, the capability of oil 
companies cleaning up a major spill in the - Arctic is highly questionable. Not only could 
extreme weather conditions make it difficult to get to the spill site, but oil trapped in ice 
would be very hard to recover." 



16 The Arctic Dispatch (March 14, 1985). 

17 58 Fed. Reg. 60407 (1993). 

18 58 Fed. Reg. 60406 (1993). 



" For additional background on the risks of oil spills in Arctic waters, see generally Greenpeace. Oil in 
Arctic Waters: The Untold Story of Offshore Drilling in Alaska (1993). 



153 



U.S. Obligations Under the Agreement on the Conservation of Polar Bears 

The Agreement on the Conservation of Polar Bears was formally ratified by the 
U.S. Senate in 1976. Five Arctic nations are signatory to this treaty: the United States, 
Canada, Russia, Norway and Denmark. The treaty was prompted by concern that, 
without immediate international action, the polar bear might become endangered. 
Through their participation in the Agreement, Arctic nations assumed a number 
obligations, including restrictions of the taking polar bears and habitat protection. The 
obligation of signatory nations to protect polar bear habitat is contained in Article II, 
which states: 

Each Contracting Party shall take appropriate action to protect the 
ecosystems of which polar bears are a part, with special attention to habitat 
components such as denning and feeding sites and migration patterns, and 
shall manage polar bear populations in accordance with sound conservation 
practices based on the best available scientific data. 

A December 1993 legal review conducted for the Marine Mammal Commission 
(MMC) entitled Reconciling the Legal Mechanisms to Protect and Manage Polar Bears 
Under United States Laws and the Agreement to Protect Polar Bears notes that Article 
II establishes "three obligations" on the part of signatory nations: 

1) to take "appropriate action to protect the ecosystem of which polar 
bears are a part;" 

2) to give "special attention to habitat components such as denning and 
feeding sites and migration patterns;" and 

3) to manage polar bear populations in accordance with "sound 
conservation practices" based on the best available scientific data. 20 

According to the MMC Legal Review : 

[T]he ecosystem and habitat requirements of Article II go beyond the protection 
of the area actually occupied by bears. Instead, it applies to all components of 
the Arctic environment. The Agreement makes the protection of these areas a 
mandatory duty. It appears, however, by providing that "appropriate action" 
should be taken to protect these areas, the parties intended this concept to be a 



20 D. Baur, Reconciling Ihc Lcy.nl Mechanisms to Protect and Manage Polar Bears Under United 
Slates Laws and the Agreement for the Conservation of Polar Bears (1993) (" MMC Legal Review ") at 42. 
NOTE: Excerpts from this document are included as an attachment to this statement. 



154 



flexible affirmative duty, rather than a carefully circumscribed mandate to take 
certain actions. 21 

While it was generally assumed at the time of Senate ratification that the 
Agreement would be implemented domestically through the Marine Mammal Protection 
Act (MMPA), this Act insufficiently protects polar bear habitat. As noted in the MMC 
Legal Review : 

[T]he United States lacks any legal authority that confronts polar bear 
habitat/ecosystem protection head on. . . . [Current authorities] do not provide 
affirmative means or duties to protect polar bear habitat and the ecosystem of 
which it is a part. 22 

Congressional Action Is Needed 

FWS Should be Given Affirmative Authority to Protect Polar Bear Habitat 

Despite the requirements of the Agreement on the Conservation of Polar Bears, 
neither Congress nor the U.S. Fish and Wildlife Service has developed a proactive 
regime to protect polar bear habitat in the 18 years since the Senate ratification. As 
previously noted, the FWS is finally in the process of developing a Polar Bear Habitat 
Conservation Strategy, which it expects to complete by June 1995. To assure that the 
FWS has clear legal authority to take the actions it determines are necessary to protect 
polar bear habitat fully, Congress should amend the MMPA. Such an amendment 
should give the FWS full affirmative authority to protect essential polar bear habitat 
both on land and in the waters off the coast of Alaska. Clear authority for onshore 
areas will assure that the FWS can protect key land denning areas. Additional offshore 
authority will assure that the FWS can protect other important denning, feeding and 
migration areas that may be identified by the Polar Bear Strategy. 

During the final negotiating session for the Agreement on the Conservation of 
Polar Bears, Curtis Bohlen, Chief of the U.S. delegation, told the other negotiators that 
the United States intended the treaty to designate "a large portion of the Arctic region 
as an area where the polar bear would enjoy total protection." 23 He added: 'Anything 
less would be unacceptable to the American people, for whom the polar bear has 
become both an example of wanton killing for the sake of short-term economic gain and 



21 MMC Legal Review al 45. 

" MMC Legal Review at 129-130. 



° Final Acl and Summary Record of: The Conference to Prepare and Agreement on the Conservation 
of Polar Bears 19 (1980). 



155 



8 

a symbol of the fight to stop the continuing destruction of man's own ecosystem." 24 We 
submit that the time has come for Congress to give the U.S. Fish and Wildlife Service 
the authority it needs to protect polar bear habitat and to make good on an important, 
but long overlooked, wildlife treaty obligation. 

Congress Should Not Deregulate Oil Company Activities Affecting Polar Bears 

In addition to amending the MMPA to improve the regime for polar bear habitat 
protection, the Committee should make sure that it does not reduce the existing 
statutory regime used to regulate oil and gas activities in polar bear habitats. 
Specifically, Section 101(a)(5)(A) of the MMPA provides the FWS with authority to 
review and regulate some of the potential impacts of oil company activities on polar 
bears and, to a certain extent, polar bear habitat. Although Congress should supplement 
this provision by providing the FWS with clear and affirmative authority to protect polar 
bear habitat directly, Section 101(a)(5)(A) serves as an important means of regulating oil 
and gas activities. The provision also provides a primary statutory basis FWS is using to 
develop a Polar Bear Habitat Conservation Strategy. For these reasons, we strongly 
oppose deregulatory proposals to create a separate process for oil company activities 
that harass polar bears. Since lethal takes resulting from oil and gas activities are 
prohibited under the Polar Bear Agreement, all petitions for the incidental taking of 
polar bear submitted by oil companies will be for so-called "harassment trkes." Since, 
with respect to the impact of oil company activities on polar bear denning behavior, the 
distinction between harassment and lethal taking is a very fine one (i.e. harassment takes 
are likely to be fatal to polar bear cubs), it is wholly inappropriate to change the existing 
regulatory regime. Moreover, as noted above, such a change might call into question 
FWS' statutory basis for developing a Polar Bear Habitat Conservation Strategy. 

Congress Should Not Allow the Importation of Polar Bear Trophies 

Finally, we oppose proposed amendments to Section 104 which would allow the 
importation of polar bears trophies from Canada. We believe that such an amendment 
is unnecessary in view of the existing waiver provision contained under Section 
101(a)(3)(A) of the MMPA. This waiver provision assures that any import would be 
conducted in a biologically sound manner. Moreover, such an amendment runs counter 
to the wildlife protection intent of the Marine Mamma] Protection Act. There is simply 
no compelling reason to set a precedent that undermines the protective nature of one of 
this nation's most important wildlife statutes. 

We appreciate the Committee's interest in this matter and urge the committee to 
address this concern during the reauthorization of the Marine Mammal Protection Act 
by adopting appropriate amendments to clarify the FWS' authority in this area. 



156 
Excerpts from 



RECONCILING THE LEGAL MECHANISMS 

TO PROTECT AND MANAGE 

POLAR BEARS UNDER UNITED STATES 

LAWS AND THE AGREEMENT FOR 
THE CONSERVATION OF POLAR BEARS 



Prepared for the 
Marine Mammal Commission 



By 

Donald C. Baur 

Perkins Coie 

607 Fourteenth Street, N.W. 

Suite 800 

Washington, D.C. 20005 



December "».0, 1993 



109901 -970O/DA9J0320 016) 



157 



EXECUTIVE SUMMARY 

In consecutive years - 1972 and 1973 - the United States 
enacted landmark legislation to protect marine mammals (the 
Marine Mammal Protection Act ("MMPA")) and joined with four 
other countries in an international agreement to protect the 
world's polar bear populations (the Agreement on the 
Conservation of Polar Bears) . See Addendum. Although both 
initiatives borrowed heavily from the concepts and goals of 
each other (deliberations leading up to the MMPA and the 
Agreement occurred concurrently) , the provisions of the final 
law and international treaty did not result in a perfect fit. 
In some respects, the MMPA has proven to be more protective 
than the Agreement, and vice versa. These inconsistencies 
persist today, even though section 108(a)(4) of the MMPA 
requires the federal government to seek comparable levels of 
protection for marine mammals under the MMPA and international 
agreements, and Article VI. 1. of the Agreement requires each 
party to enact legislation to fulfill its requirements. 

Polar bears remain at risk from human activities. In the 
early 1970s, the principal threat was from hunting and the 
cumulative effect of other lesser sources of impacts. Under 
the Agreement and the MMPA, the threats posed by sport hunting 
have been largely eliminated. Other threats exist, however. 
These include: the possibility of injury or death to bears 
caused by development activities; damage or destruction to 
polar bear habitat from those activities; contamination of the 

(OW01-9700/DA930320.016) -IV- 12/2003 



79-705 0-94-6 



158 



food chain of which polar bears are a part; harassment as a 
result of increased human presence in areas occupied by polar 
bears, especially denning areas. There also is the potential 
that Native take for subsistence/handicraft purposes could 
adversely impact polar bear populations. At present, there is 
no evidence that Native take is adversely affecting polar bear 
populations. However, a better understanding of these impacts 
is needed and if other sources of impacts on polar bear 
populations increase, the resulting cumulative effects could 
cause population declines. 

To fully address these threats to polar bear population 
stocks and provide the level of protection contemplated by the 
drafters of the MMPA and the Agreement, both legal authorities 
would have to be amended. By carrying the strong points of 
the MMPA and the Agreement forward into each other, a uniform 
set of legal principles would be established to govern both 
international and United States domestic efforts to protect 
and conserve polar bears. Policy decisions must be made 
whether it is appropriate to pursue some or all of the changes 
that would be reguired to bring the MMPA and the Agreement 
into full conformance with each other. 

To more fully implement the Polar Bear Agreement, a 
number of amendments could be undertaken. Legal authority to 
protect polar bear habitat could be expressly set forth. Such 
authority is not directly provided for in the MMPA or other 
United States laws. One way to accomplish this is by amending 

(09901 -9700/DA930320.0I6] -V- 12/20/93 



159 



the definition of "take" in the MMPA to add the prohibited act 
of "harming" marine mammals. Under the Endangered Species 
Act, "harm" has been construed to include destruction or 
degradation of habitat, and this prohibition could be carried 
forward to the MMPA. In addition, the rulemaking authority of 
the MMPA could be amended to authorize the Secretary to 
designate protected areas where activities that would 
adversely affect poiar bears (or other marine mammals) would 
be prohibited or restricted such as, for example, to prevent 
depletion. Finally, efforts could be made to strengthen the 
implementation of existing laws that apply to habitat 
protection, such as the Outer Continental Shelf Lands Act. 

In addition to providing for habitat protection, the MMPA 
could be brought into conformance with the Polar Bear 
Agreement by prohibiting the following: the use of aircraft 
and large motorized vessels to take polar bears, including by 
Alaska Natives; the taking of cubs and females with cubs, 
including by Alaska Natives (if desired to conform with the 
non-binding Resolution to the Agreement) ; the taking of polar 
bears from the wild for public display purposes; and lethal 
incidental take. Finally, the MMPA could be strengthened to 
more fully effectuate the Agreement by imposing affirmative 
duties on the federal government to take the necessary actions 
to protect polar bears (as well as other marine mammals) . 
Such a requirement exists in the Endangered Species Act and 
other environmental laws, and it could be carried forward to 

[09901-9700/DA930320 016} -Vi- XTHXtm 



160 



the MMPA. In addition to these legislative actions, steps 
could be taken to assist Alaska Natives in their efforts to 
regulate their polar bear harvests, such as is currently being 
done for the Beaufort Sea polar bear population in a 
cooperative agreement between the North Slope Borough Fish and 
Game Management Council and the Inuvialuit Game Council of 
Canada's Northwest Territories. Native communities in Alaska 
have a strong record of self-regulation in order to ensure the 
long-term viability of wildlife populations. This tradition 
could be bolstered by the federal government to advance the 
goals of the Agreement. 

There are also amendments that could be made to the Polar 
Bear Agreement to make it consistent with the MMPA. These 
changes to the Agreement include: adding a prohibition on 
harassment; authorizing limited forms of incidental take (if a 
harassment prohibition is added) ; and authorizing control of 
nuisance animals. As in the case of amendments to the MMPA, 
policy decisions need to be made on the value of pursuing 
these amendments and the need for conformance between the 
Agreement and the MMPA in every respect. 

Obviously, not all of these changes are of equal 
importance. The purpose of this report, as requested by the 
Marine Mammal Commission, is to identify areas of 
inconsistency and discuss possible solutions, including 
amendments to existing laws. Ultimately, policy judgments 
will have to be made on whether and, if so how, to pursue the 
actions identified in this report. 

10990 1 -970O/DA930320 016) -Vii- 12/20/9! 



161 



The following excerpt Is from the report section 
entitled The Polar Bear Agreement" 



2. Habitat Protection 

Article II of the Polar Bear Agreement imposes three 
obligations on the parties: 

1) to take "appropriate action to protect the ecosystem 
'of which polar bears are a part;" 140 

2) to give "special attention to habitat components such 
as denning and feeding sites and migration patterns;" 141 and 

3) to manage polar bear populations in accordance with 
"sound conservation practices" based on the best available 
scientific data. 142 

The IUCN drafts limited Article II to the protection of 
unspecified habitat components located within the boundaries 
of each party. It also required international cooperation to 
protect polar bears that migrate across international 
boundaries. The parties greatly expanded this Article by: 
1) requiring efforts to protect the overall ecosystem upon 
which polar bears depend; 2) specifying the habitat components 



140 Id. Art. XX. 

141 la,. 



|O990l-rX)0/DA9XB3O.OI6| -4 2- 12/30*3 



162 



of greatest concern; and 3) requiring management based on 
"sound conservation practices." 

The habitat and ecosystem protection goal of Article II 
received special consideration at the 1981 Consultative 
Meeting of the Parties. 143 The contracting parties agreed at 
the 1981 meeting that more had to be done to protect the 
specified habitat areas. They determined, for example, that 
national efforts should be directed towards identification of 
important denning and feeding areas. They also agreed that 
more needed to be done to protect such areas "from disturbance 
and destruction." 144 The parties singled out "the desirability 
of providing adequate protected zones around identified 
denning areas, where disturbances due to human activities 
otherwise may occur." 145 This goal was stated clearly by the 
head of the United States delegation to the 1973 meeting of 
the parties, Mr. Curtis Bohlen, who stated the desire of the 
United States to achieve the "designation of a large portion 
of the Arctic region as an area where the polar bear would 
enjoy total protection." He also cited the need for "the 
protection of the polar bear's ecosystem including his habitat 



143 IUCM, Consultative Meeting of the Contracting Parti.ee to the 
Agreement on the Conservation of Polar Beare (1981). 

144 1£L «t 3. 
145 ld,. 



(0WOI-970O/DAV3OJ20 0I61 -43- 



163 



and food supply; and particularly the preservation within 
national areas of critical denning areas." 146 

With regard to the ecosystem protection obligation, the 
parties recognized the need to provide protection to the 
Arctic region "as a whole." Consideration was given to the 
need to use the "same lines as the polar bear cooperation is 
based on" to provide "improved protection of flora, fauna and 
nature in the Arctic." 147 Specific reference was made to the 
IUCN World Conservation Strategy, which included a proposal 
for "developing agreements among the Arctic nations on the 
conservation of the region's vital biological resources based 
en the principles and experience of the Agreement on 
Conservation of Polar Bears." 148 

Included in the record of the 1981 meeting is a statement 
by Dr. Lee Talbot, the IUCN representative, who noted that the 
concept of Arctic ecosystem protection began with the 1965 
Polar Bear Specialist Group. Dr. Talbot, observed that, 
"[t]he modern search for and exploitation of non-renewable 
resources, which was just getting underway fifteen years ago, 
has continued and intensified, with major impacts on the 



146 Final Act and Summary Record of; The Conference to Prepare an 
Agreement on the Conservation of P olar Beam 19 (19801 f " Final Act /Summary 
Record- 1. 



'li. at 73. 



[09901 -970O/DA9JO32O 0I6| -44- 



164 



social structures and economics, as well as the environment of 
a no longer remote Arctic." 149 In light of these changes, he 

observed : 

If there were gaps and missing pieces to start 
with in our knowledge and actions about polar 
bears, there are even more now in a much 
broader context, with changes occurring more 
rapidly and so much more at stake. If we were 
able to gain by cooperating and exchanging 
information about polar bears the arguments do 
indeed seem persuasive for extending this 
pattern of mutual help to include a wider range 
of present day Arctic problems. 150 

As these statements suggest, the ecosystem and habitat 
requirements of Article II go beyond the protection of the 
area actually occupied by bears. Instead, it applies to all 
components of the Arctic environment. The Agreement makes the 
protection of these areas a mandatory duty. It appears, 
however, by providing that "appropriate action" should be 
taken to protect these areas, the parties intended this 
concept to be a flexible affirmative duty, rather than a 
carefully circumscribed mandate to take certain actions. 151 
Because Article II provides that such actions "shall" be 
taken, it is clear that the parties have an obligation to 



14> Id. at 75. 

1S0 Id. at 75-76. 

151 Tha explanatory notat on tha July and Saptambar 1973 IOCS draft* 
maka it claar that tha word "appropriate" waa uaad to aignal that 
contracting partiaa raaarva tha right to puraua "diffaring" approachaa to 
fulfilling thair ccanitaenta undar tha Agreement. Sis Polar Baar 
Agreement, July, Saptambar 1973 ZUCN Orafta, mUXM n.120, 121, at 2, 3. 



I0WOI-970O/DA9MJ 20.016) 



.45. I2/20V9) 



165 



implement the "appropriate" habitat and ecosystem protection 
actions. 

There is no discussion of the meaning of the phrase 
"sound conservation practices" in the background documentation 
of the Agreement. In a resolution passed by the parties 
during the 1973 Oslo meeting, however, it was specified that 
the taking of females with cubs and their cubs would be 
contrary to "sound conservation practices." 152 



166 



The following excerpt is from the report section entitled 
"Reconciling United States Laws and the Polar Bear Agreement" 

5. Habitat and Ecosystem Protection 

There are a variety of legal measures available to the 
United States to protect polar bear habitat. MMPA regulations 
and letters of authorization issued under section 101(a)(5) 
can prohibit or restrict activities in important habitat areas 
if they would involve the take of polar bears. Because the 
greatest threat to polar bear habitat results from the 
Harassment of bears in denning areas, taking restrictions 
under section 101(a)(5) might address a major concern under 
Article II of the Agreement. OCSLA leases, exploration 
permits, and development plan authorizations could be 
conditioned in the same way. National Environmental Policy 
Act reviews can identify threats to polar bear habitats, and 
any resulting decisions can be appropriately tailored to avoid 
such impacts. Finally, the CZMA can be applied to restrict 
development in coastal areas that would harm such habitat. 

Despite these available mechanisms, the United States 
lacks any legal authority that confronts polar bear 
habitat/ecosystem protection head on. All of the above-cited 
authorities are preventative in nature; they do not provide 
affirmative means or duties to protect polar bear habitat and 
the ecosystem of which it is part. Thus, although it cannot 
be said that the United States has failed to comply with the 
Agreement to date by allowing polar bear habitat to be 
adversely impacted, neither can it be said that the United 

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167 



States has readily available tools that would allow it to take 
steps to set aside polar bear habitat/ecosystems so that they 
are fully protected as envisioned by the Agreement. 

Such authority is most directly applicable to habitat 
impacts that cannot be regulated under the MMPA taking 
prohibition. These include: permanent damage or destruction 
to denning areas; long-term occupation of such areas 
- effectively rendering them unusable by bears; obstructions to 
bear movement routes that cause them to avoid or abandon 
preferred habitat locations; contamination of feeding areas; 
degradation of the ecology of the Arctic causing the 
contamination of prey species; cumulative impacts from 
development activities; and releases of contaminants that 
expose bears to the risk of injury or harm, such as the 
recently documented exposure to PCBs and other contaminants. 350 

There are several forms of legal authority that could be 
established to provide the United States with tools to achieve 
permanent habitat protection for polar bears, should a policy 
decision be made to pursue such a result. Although this 
authority could be limited to polar bear habitat/ecosystems, 
it also could be beneficial for other marine mammals in light 



"See, e.g. . Doug Mellgren, PCBb Suspected in Fewer Polar Bear 
Birtha, Anchorage Daily NewB . Jan. 24, 1993, at PI; J. Lentfer and 
W. Galeter, Mercury in Polar Bears from Alaska . Journal of Wildlife 
Diseases 338 (1987); J. Lentfer, Environmental ContaminantB and '. , -» nites 
in Polar Bears. Final Report to Alaska Dep't of Fish and Game 7-lj (1976). 



(099O1-970O/DA93032O.0I6I -130- 



168 



of the MMPA general statements of policy that promote habitat 
protection for all species and stocks. The most obvious of 
these is the inclusion of important habitat areas in protected 
areas that are off-limits, at least seasonally, to activities 
that could adversely affect polar bears. Such protection 
currently is provided in various locations in the Arctic by 
the Bering Land Bridge National Preserve, Cape Krusenstern 
National Monument, and Arctic National Wildlife Refuge. 

Another possibility is the use of the MMPA's rulemaking 
authority to designate protected zones for the purpose of 
preserving habitat. Although an argument can be made that 
such authority exists in section 112(a) of the MMPA, 351 it has 
been used for this purpose only twice, — by FWS to protect 
manatees by designating speed boat zones in Florida waters and 
by the National Park Service to establish cruise ships limits 
and restricted areas in Glacier Bay. In both instances, 
however, the MMPA's rulemaking power was used in conjunction 
with other legal authorities. Moreover, both sets of 
regulations were established to prevent takes from occurring, 
not to protect habitat itself. In the November 1993 
incidental take regulations for the Beaufort Sea and adjacent 
coast, FWS suggests that there is authority to implement the 

Polar Bear Habitat Conservation Strategy, but the source of 

that authority is not identified. 352 



'16 U.S.C. S 1382(d) 



109901 -970O/DA93O320 016) -131- 



169 



TESTIMONY BEFORE THE HOUSE COMMITTEE ON 

MERCHANT MARINE AND FISHERIES 

SUBCOMMITTEE ON ENVIRONMENT AND 

NATURAL RESOURCES ON THE REAUTHORIZATION OF THE 

MARINE MAMMAL PROTECTION ACT 



by 

LARRY MERCULIEFF, MANAGER, CITY OF ST. PAUL, ALASKA 

on behalf of 

THE BERING SEA COALITION 

and 

THE CITY OF ST. PAUL, ALASKA 

February 10, 1994 



Prepared by 

PERKINS COIE 

607 Fourteenth Street, N.W. 

Suite 800 

Washington, D.C. 20005 



79-705 0-94-7 



170 



CONTENTS 

I . INTRODUCTION 1 

II. BACKGROUND ON THE ECOSYSTEM HEALTH AND . 

STABILITY GOAL OF THE MMPA 11 

A. REFERENCES TO ECOSYSTEM PROTECTION IN THE 

TEXT OF THE MMPA 11 

B. LEGISLATIVE HISTORY REFERENCES TO 

ECOSYSTEM PROTECTION 16 

III. CONCERN OVER MARINE ECOSYSTEM DEGRADATION 

EXPRESSED UNDER OTHER LAWS 27 

IV. DECLINE OF THE BERING SEA ECOSYSTEM 36 

V. OTHER MARINE ECOSYSTEMS IN DECLINE 41 

VI . PROPOSED MMPA AMENDMENT 45 



171 



I. INTRODUCTION 

Thank you for this opportunity to present testimony on 
the reauthorization of the Marine Mammal Protection Act. My 
name is Ilarion Merculieff and I am the Manager for the City 
of St. Paul in Alaska's Pribilof Islands, as well as 
coordinator for the Bering Sea Coalition. 

St. Paul Island is one of the Pribilof Islands located in 
the eastern Bering Sea. It is the home for approximately 750 
residents, most of whom are Aleuts. Since time immemorial, 
Aleuts have depended upon the bounty of the sea for their 
sustenance, livelihood, and culture. As a result of its 
location, St. Paul Island is at the center of one of the 
world's most biologically productive marine environments. 
This region is the home for many species of marine mammals, 
sea birds, and commercially valuable fish and shellfish. 
These biological resources are the foundation of the 
subsistence economy and culture of the residents of the 
Pribilof Islands and the Bering Sea coastal region. They are 
also the foundation of a commercial fishery that contributes 
at least ten percent of the world's fishery production. These 
fisheries are essential to the future of St. Paul and many 
other Bering Sea coastal communities. The future economic 
growth and stability of St. Paul, like many other Bering Sea 



172 



communities, is inextricably linked with the long-term 
viability of a successful commercial fishing industry and a 
healthy Bering Sea ecosystem. 

The Bering Sea Coalition consists of 57 coastal 
communities in Alaska stretching from Nome to Atka. It was 
first formed in 1991 in an effort to bring together indigenous 
peoples with a common concern in issues related to the Bering 
Sea. The Coalition serves as: 1) an informal sharing 
network; 2) an organization that can be a force in 
decisionmaking processes and scientific fora; 3) an 
educational mechanism to inform others of the value of 
indigenous cultures in protecting and managing resources and 
teaching native spirituality; 4) a vehicle for obtaining 
research funding; 5) an organization to participate in 
research programs; and 6) an outreach effort to establish a 
link between Alaskan and Russian coastal communities for the 
purpose of developing cooperative efforts to protect shared 
cultural and natural resources. 

The Bering Sea Coalition and the City of St. Paul are 
deeply concerned over the current population declines and 
ecosystem-wide ecological injury evident in the Bering Sea 
region. If the current trends persist, the subsistence and 
cultural patterns that have occurred for centuries in the 
towns and villages along the Bering Sea will be threatened, as 
will the economic base that holds the key to the future well- 

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173 



being of these communities. And, just as these communities 
will suffer if this emerging ecological crisis is not abated, 
so will the other economic and environmental interests that 
benefit from the resources of the Bering Sea. A resource of 
national and international significance is at stake, and 
immediate action is imperative. 

Throughout the 1700' s and 1800' s, the marine mammal 
resources of the Bering Sea served as the basis for a thriving 
trade in pelts and other byproducts. Largely unregulated 
trade in these marine mammal products lead to the near 
extinction of several species. As a result, much of the fur 
trade and the economic wealth it produced was brought to an 
end in the early 1900' s. 

Today, the resources of the Bering Sea are again 
providing for flourishing economic activities, including a 
large-scale commercial fishing industry and a growing tourist 
industry. These resources also are essential for subsistence 
purposes for Alaskan Natives. The Bering Sea resources that 
support this economic development and subsistence use are 
beginning to show severe signs of stress, once again posing 
the possibility that unwise use of the natural resources of 
this region will, as with the fur trade, cause thriving 
economic opportunity to decline or come to an end and diminish 
the availability of subsistence resources. 



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Since the mid-1970s, Bering Sea populations of Northern 
fur seals, Steller sea lions, harbor seals, and several 
species of fish-eating seabirds and sea ducks have all 
experienced substantial, unexplained declines in their number 
indicative of an ecosystem-wide injury. The Steller sea lion, 
now classified as a threatened species under the Endangered 
Species Act ("ESA"), 1 has declined from more than 100,000 
animals in the 1970s to only 35,000 today. Since the late 
1950s, the number of Northern fur seals has been reduced from 
about 1.8 million to about half that amount, and the species 
is now classified as depleted under the MMPA. 2 The Bering 
Sea/Gulf of Alaska harbor seal population is also experiencing 
a dramatic decline, and ESA listing may be forthcoming. 
Seabird populations have also been impacted, with some 
colonies of murres and kittiwakes reduced by as much as fifty 
percent in the period from 1976 to 1991. Spectacled eiders, a 
large-bodied sea duck, have also declined drastically since 
the 1960s and are listed as threatened. The wintering area of 
Spectacled eiders is not know but is probably in the Bering 
Sea near the ice edge. Heavy metal contaminants are also 
beginning to appear in substantial levels in walrus meat and 
other marine wildlife, raising concerns that marine pollution 
is affecting the health not only of living marine resources 



^o c.f.r. S 17.11. 
2 50 C.F.R. S 216.15(c). 

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but also residents of coastal communities who consume walrus 
meat for subsistence purposes. The Bering Sea ecosystem also 
involves complex international issues related to shared fish 
and wildlife populations with Russia and the international 
fisheries in the Bering Sea. 

In addition to the adverse impact that improper 
management of the Bering Sea can have on the resources of the 
region, the threat of legal restrictions imposed under the ESA 
and other laws to protect affected species is already becoming 
a reality in the Bering Sea region, producing controversy and 
resulting in restrictions on resource utilization activities. 
For example, the listing of the Steller sea lion under the ESA 
has resulted in restrictions on commercial fishing activities. 
If additional regulatory measures become necessary to protect 
the declining marine resources of this region, the Bering Sea 
may eventually become as embroiled in the conflict between 
species protection and natural resource utilization as is 
presently being experienced by the Pacific Northwest as a 
result of legal measures undertaken or contemplated to 
conserve the northern spotted owl, the marbled murrelet, and 
several salmon species. 

Other marine ecosystems manifest problems similar to 
those evident in the Bering Sea. Most of the problems being 
experienced in the Bering Sea are also occurring in the Gulf 
of Alaska. Off the coast of New England, numerous fisheries 

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resources of the Georges Banks region are in serious decline. 
In the Chesapeake Bay, waterfowl and numerous commercially 
valuable fish and shellfish species are showing significant 
population declines. The Caribbean Sea, which produces 
fishery resources important to United States, is experiencing, 
system-wide degradation. Similar problems are occurring 
elsewhere in the world in marine ecosystem areas for which the 
United States has important economic and environmental 
interests and international agreement obligations. 

The problem shared in all of these regions is that 
resources are declining on a system-wide basis. The result is 
that species and population stocks that are of considerable 
commercial, ecological, subsistence, and aesthetic value are 
reaching a point where legal restrictions may be, or are 
already, necessary in an effort to halt or reverse the 
declines. These restrictions can apply not only to the 
species in need of protection, but also to the use of other 
resources that have a spatial or ecological relationship to 
the adversely affected species. For example, fishing 
operations that impact the food web of marine ecosystems may 
have to be curtailed under the ESA or other laws to protect 
other depleted fishery resources, marine mammals, marine 
birds, sea turtles, or other marine wildlife species. By 
focusing on marine ecosystem-based research and management and 
following a proactive approach to identifying ecosystem-based 



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problems and responding to them before they become severe, it 
may be possible to avoid the need to resort to such costly, 
controversial, and after-the-fact regulatory programs. 

In this proposal, the Bering Sea Coalition and the City 
of St. Paul, Alaska, seek an amendment to the Marine Mammal 
Protection Act ("MMPA") to provide the basis for eventually 
establishing comprehensive, ecosystem-based protection and 
management of living marine resources. The MMPA is the ideal 
vehicle for such an amendment in that its primary objective is 
to ensure the "health and stability" of the marine ecosystems 
of which marine mammals are a part. 3 Although the MMPA 
establishes this policy, it provides few of the tools 
necessary to achieve this goal. The MMPA also recognizes the 
importance of marine mammals and a healthy marine ecosystem to 
the subsistence and economic needs of Alaskan Natives. 4 

While living marine resources continue to be managed or 
protected separately under a variety of laws, such as the 
MMPA, the Magnuson Fishery Conservation and Management Act 
("Magnuson Act") , the Migratory Bird Treaty Act, and the ESA, 
there is no single law that provides for addressing marine 
ecosystem issues on a comprehensive basis. As demonstrated by 
the current biological problems being experienced in a number 



3 16 U.S.C. S 1362(6). 

4 Id. SS 1371(b), 1402(b)(7). 

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of marine ecosystems, it is clear that the species-specific 
emphasis of these laws has failed to identify and respond to 
ecosystem-based protection and management needs. 

The proposal calls for an amendment to the research 
requirements of the MMPA. Under the first part of the 
proposed amendment, the Secretaries of the Interior and 
Commerce, in consultation with the Marine Mammal Commission, 
would contract with the National Academy of Sciences to 
prepare a report to Congress on the need for marine ecosystem 
protection and management. This report would: 1) assess the 
status of the health and stability of large marine ecosystems 
consisting in whole or part of waters subject to the 
jurisdiction of the United States or for which the United 
States has international treaty obligations, and identify 
those ecosystems that are experiencing system-wide injury; 

2) analyze the effectiveness of existing research, management, 
and conservation tools to address these problems; and 

3) identify the additional actions needed to address the 
identified problems. A special process would be established 
to utilize Alaska Native organizations and traditional Native 
local knowledge in this research, including research on the 
use of marine ecosystem resources for subsistence purposes. 

The second element of the amendment would authorize 
research specifically directed at marine ecosystem problems 
and protection needs in the Bering Sea. This research would 

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be conducted by the Secretaries of the Interior and Commerce, 
in consultation the Marine Mammal Commission. It would be 
undertaken with assistance from affected interest groups, 
including Alaskan Natives and coastal communities located on 
the Bering Sea. Research on subsistence issues would be 
conducted, on request, under contract with qualified Alaska 
Native organizations. The goal of this research would be to 
obtain baseline data on Bering Sea resources, establish long- 
term monitoring programs, and investigate the causes of and 
potential solutions to the species declines already documented 
in this region. Specific attention would be provided to 
marine mammal and marine bird populations, and fish and 
shellfish stocks. This research would be undertaken in 
locations in Alaska where researchers will have access to the 
ecosystem studied, and where the affected environmental 
systems can be monitored. 

This proposal advances a national and international 
agenda. As Secretary Babbitt has declared in his proposal to 
establish the National Biological Survey, it is essential to 
establish "an anticipatory, proactive biological science 
program to enable land and resource managers to develop 
comprehensive ecosystem management strategies to minimize 
conflicts, litigation, and economic costs." 6 



5 Preaa Releaae, Department of the Interior, 3 (Apr. 8, 1993). 



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Congressman Don Young has recognized the need for 
developing adequate biological information on marine ecosystem 



[A] lot of what is made decision wise is made 
without any real factual biological base. If 
there is anything we can do [it] is to get more 
of a network of scientists to understand this 
problem, out my mouth it sounds very strange, 
the ecosystem. But unfortunately we base a lot 
of our decisions on our individual [area], 
maybe longliners, purse seiners or gillnetters 
or whatever it is, without any real knowledge. 6 



With regard to the Bering Sea, President Clinton recently 

noted: 

The Bering Sea, off the coast of Alaska, is one 
the Earth's most biologically productive marine 
ecosystems. Its fish and shellfish provide 10 
percent of the world's commercial catch and 
feed many of the people of Asia and North 
America. To ensure that these and all other 
natural resources will be available for our 
descendants, we must carefully manage this 
richly endowed region. The difficult task of 
protecting the pollution-sensitive Arctic 
relies on careful scientific monitoring and 
. . . international cooperation. 7 

It is in this vein that the proposal set forth by the City and 

Coalition carries these themes forward. 



B jfagnugaB Fishery Conservation and Management Act Reauthorlzation- 
Part II; Hearings on Reauthorization of the Magnuson Fishery Conservation 
and Management Act to Ensure the Survival of Our Fishing Industry and Our 
Coastal Communities Before the House Comm. on Merchant Marine and 
Fisheries . 103rd Cong., 1st Sess. 45 (1993) (statement of Rep. Don Young, 
U.S. Rep. from Alaska, and ranking minority member, House Subcomm. on 
Fisheries Management). 

7 Letter from President Clinton to the International Symposium on the 
Ecological Effects of Arctic Airborne Contaminants (September 27, 1993). 



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II. BACKGROUND ON THE ECOSYSTEM HEALTH AND 
STABILITY GOAL OF THE MMPA 



REFERENCES TO ECOSYSTEM PROTECTION IN THE TEXT OF 
THE MMPA 



In 1972, landmark legislation — the MMPA — was enacted 
to protect marine mammals from the direct and indirect effects 
of human activities. The MMPA seeks to accomplish this result 
through its moratorium on all forms of "taking" ( i.e. . 
harassing, hunting, capturing, or killing) marine mammals, 
subject to limited exceptions. 8 The goal of the moratorium, 
and the research and management programs authorized by the 
MMPA, is to ensure that marine mammal species and population 
stocks are not permitted to: 1) "diminish beyond the point at 
which they cease to be a significant functioning element in 
the ecosystem of which they are a part," and 2) "consistent 
with this major objective, [that] they should not be permitted 
to diminish below their optimum sustainable population." 9 

Although these goals serve as the basis for 
administration of marine mammal programs under the Secretaries 
of Commerce and the Interior, they are actually the MMPA's 
secondary objectives. When it passed the MMPA, Congress 
recognized the pre-eminent need to ensure the long-term health 
of the marine environment as a whole. Throughout the 



8 16 O.S.C $ 1371. 
' 9 Id. S 1361(2). 



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deliberations leading up to passage of the Act, members of 
Congress, federal and state officials, scientists, and members 
of the public expressed concern with the overall health of the 
marine environment and its living marine resources. Concerns 
regarding pollution, habitat degradation, over-exploitation of 
fisheries and other living marine resources, as well as the 
desire to reduce the direct and incidental take of marine 
mammals, motivated Congress to pass the MMPA. 

In recognition that marine mammals are but one part of 
marine ecosystems and that such ecosystems were, even in 1972, 
in a serious and rapid state of decline, Congress established 
as the primary goal of the MMPA the management of marine 
mammals "to maintain the health and stability of the marine 
ecosystem." 10 In declaring this policy objective, however, 
Congress did not provide any specific authority to advance 
this primary goal. For example, no direct authority exists 
under the statute to protect marine mammal habitat or 
components of such habitat, including prey species. No 
research programs are expressly authorized to address marine 
ecosystem health and stability issues or the relationship 
between marine mammals and other elements of the marine 
environment. Perhaps most importantly, no tools are provided 
to manage marine ecosystems on a comprehensive basis, 



p Id. S 1361(6). 



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recognizing the inter-related nature of all resources of the 
marine environment and the role that marine mammals play in 
the dynamics of each such ecosystem. As a result, the 
"primary" Congressional objective of the MMPA has, in many 
respects, become the MMPA's "forgotten" objective. 

The MMPA makes frequent, although only general, reference 
to ecosystem protection. The text of the law establishes that 
Congress intended to make marine ecosystem health and 
stability its over-arching policy goal, as well as an 
essential element of MMPA research and management initiatives. 
For all of this attention to marine ecosystem protection, 
however, the Act gives little impetus to actions designed to 
carry out that goal. 

Section 2 of the Act, which recites findings and 
declarations of policy, contains several references to the 
importance of protecting the environment of which marine 
mammals are a part. Section 2(2) provides that "[certain] 
species and population stocks 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." 11 Congress also found, in section 2(5) (B) that 
"marine mammals and marine mammal products . . . affect the 
balance of marine ecosystems in a manner which is important to 



' id. S 1361(2), 



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184 



other animals and animal products which move in interstate 
commerce." 12 Section 2(6) sets forth the MMPA's foremost 
objective by stating that "it is the sense of the 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 mainta in the health 
and stability of the marine ecosystem ." 13 

Section 3 also incorporates ecosystem protection. The 
MMPA defines "Optimum Sustainable Population" ("OSP") , for 
example, as "the number of animals which will result in the 
maximum productivity of the population or the species, keeping 
in mind the carrying capacity of the habitat and the health of 
the ecosystem of which they form a constituent element." 14 

The Secretaries of the Interior and Commerce may, under 
the MMPA, authorize takings incidental to certain activities. 
The appropriate Secretary may also authorize directed takings. 
When requested to do so by individuals who participate in an 
activity other than commercial fishing, the appropriate 
Secretary may permit incidental takings of small numbers of 
marine mammals if they are controlled by regulations "setting 



12 Id. S 1361(5) (B). 

13 Id. S 1361(6) (emphasis added). 

14 Id. S 1362(9). 

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185 



forth . . . permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable 
adverse impact on such species or stock and its habitat." 15 
Similarly, the Secretary may issue a general taking or 
importation permit, provided that in issuing the regulations 
governing such a situation, "the Secretary shall give full 
consideration to . . . the marine ecosystem and related 
environmental considerations." 16 

In the context of international agreements, the Act 
emphasizes the importance of protecting regions as opposed to 
individual animals. The MMPA encourages the Secretaries, 
working through the Secretary of State, to "seek . . . 
agreements to promote the purposes of this act with other 
nations for the protection of specific ocean and land regions 
which are of special significance to the health and stability 
of marine mammals." 17 

Finally, in a recent addition to the MMPA, the "Marine 
Mammal Health and Stranding Response Act," Congress focused 
attention on the impacts pollutants in the marine environment 
are having on the health of marine mammals. One purpose of 
the program established by this Act is to "correlate the 



^Idi S 1371(a) (5)(ii)(l). 
16 Id. S 1373(b)(3). 
17 Id. S 1378(a)(3). 

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health of marine mammals and marine mammal populations, in the 
wild, with available data on physical, chemical, and 
biological environmental parameters." 18 This amendment, passed 
partly in response to die-offs of bottlenose dolphins on the 
East Coast in the late 1980' s, constitutes legislative 
recognition of the dependence of the health of marine mammals 
on the health of their environment. 

As these statutory references demonstrate, Congress 
frequently recognized the relationship between marine mammal 
protection initiatives and the health and stability of the 
marine environment. Nowhere is the MMPA, however, is the 
federal government authorized or directed to take action 
expressly for the purpose of protecting the marine ecosystem. 
The significance of this lack of authority becomes even more 
apparent when the legislative intent underlying the MMPA is 
taken into account. 

B. LEGISLATIVE HISTORY REFERENCES TO ECOSYSTEM 
PROTECTION 

The references to ecosystem protection in the text of the 
MMPA are the outgrowth of extensive discussion about 
environmental problems plaguing the marine environment voiced 
throughout the debate on the original MMPA and its 
reauthorizations. Indeed, these legislative history 



,8 16 U.S.C.A. S 1421(b)(2) (West Supp. 1993), 



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statements reveal a much broader concern with marine ecosystem 
issues than is reflected in the current statutory text. 

General references to the need for ecosystem protection 

are found throughout the MMPA legislative history. In 1972, 

the Senate Commerce Committee considering the MMPA wrote, 

" [b]asic life history and population information ought to be 

obtained for each marine mammal of concern to the United 

States. . . . All of these animals are a part of the ocean 

biomass and are important in maintaining an ecological 

balance." 19 Six years later, the House Report accompanying 

reauthorization legislation stressed the importance of the 

research that had been carried out to that point: 

This expanded knowledge has enabled us to 
better assess the impact of various ocean- 
related development activities on marine 
mammals. An understanding of these impacts and 
of the relationship of marine mammals to their 
ecosystem permits the development of programs 
to ensure that these species remain a 
functioning part of their ecosystem. 20 

In the section-by-section analysis of the original Senate 
bill in 1971, the report authors noted that the finding 
regarding the importance of marine mammals as functioning 
parts of their ecosystems included in the Act was meant to 
emphasize "the need to protect those geographic areas of 



19 S. Rep. No. 863, 92d Cong., 2d Sees. 10 (1972). 
20 H.R. Rep. No. 1028, 95th Cong., 2d Sees. 5 (1978) 



[19653-0001/DA94O590.060) -17- 



188 



significance for each species of marine mammals from adverse 
activities." 21 

In a letter to the Department of State, Congressman 

Dingell stressed this theme by stating: 

The disappearance or low population levels of 
certain species of marine mammals would clearly 
have implications for the ecosystems of which 
these mammals have been a significant part. 
Also, the level of pollution of the world's 
oceans will unquestionably have some effect 
upon them which might well be to increase the 
environmental stress limiting their growth and 
survival rates. 22 

The State Department replied: 

[T]he disappearance or serious reduction in the 
population levels of marine mammals can affect 
the stability and viability of marine 
ecosystems which in turn can lead to a more 
generalized disruption of the marine 
environmental balance. If we are to preserve 
the oceans, and if their resources are to be 
preserved for mankind, programs must be 
developed that view the oceans and their flora 
and fauna as a totality . . . . 23 



21 



S. Rep. No. 863, 92d Cong., 2d Seas. 11 (1972). 



22 Letter from John Dingell, Chairman of the House Subcommittee on 
Piaheries and Wildlife Conservation, to Christian Herter, Special Assistant 
to the Secretary of State for Environmental Affairs (August 17, 1971), 
reprinted in »«»»-<«« M^imy 1 ■» Hearings on H.R. 1 0420. et al.. Before the 
Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on 
Merchant Marine and Fisheries , 92d Cong., 1st Sess. 200 (1971) [hereinafter 
House Hearings ] . 

23 Letter from Harrison M. Symms, Acting Assistant secretary of State 
for Congressional Relations, to John Dingell, Chairman of the House 
Subcommittee on Fisheries and Wildlife Conservation (not dated), reprinted 
in House Bearings at 200-201. 



[19633-0001/DA94O590.060] -18- 



189 



These general themes were repeated in individual discussions 
pertaining to the relationship between marine mammal optimum 
sustainable population levels, the general impact of human 
activities on the marine environment, and the conseguences of 
pollution on the health and stability of the marine 
environment. 

The legislative history of the Act demonstrates that when 

Congress chose to seek the "Optimum Sustainable Population" 

("OSP") of marine mammals, it was responding to testimony 

regarding the importance of considering the animals part of a 

larger ecosystem. Dr. G. Carleton Ray of the Marine Mammal 

Council suggested Congress use ecosystems to define OSP. As 

he stated before the House Subcommittee on Fisheries and 

Wildlife Conservation: 

The concept of "sustainable yield" is important 
and it is clear that such a yield must not be 
calculated merely in economic terms . . . what 
is "optimum" from the point of view of economic 
yield may not be optimum in terms of a species 
or 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. 24 

Dr. Ray continued, "[w]hen we are speaking of just plain 
scientific fact and biology you cannot always protect an 
animal by protecting the animal. You have to protect this 



24 House Hearings at 401-02. 



(19653-0001/DA940590.060) -19- 



190 



habitat and you will protect the animal." 25 In response to a 

later written request for a distinction between "sustainable 

yield" and "optimum yield," the panel which included Dr. Ray 

responded: 

"Optimum" may be defined according to various 
criteria. The economic view might be the 
maximum number of the most salable animals that 
can be taken without causing decline. 
Biologically, the optimum yield might be less 
because the wildlife manager felt that some 
surplus animals were necessary for population 
or ecosystem health. 26 

A representative of the Department of the Interior also 
emphasized the need to consider marine mammals as part of a 
larger dynamic in defining OSP. Joseph P. Linduska, Associate 
Director of the Bureau of Sport Fisheries and Wildlife, 
stated: "Populations of wild creatures are not and cannot be 
isolated from other elements of the environment under the 
assumption that such isolation will insure their continued 
existence. On the contrary, wild animal populations are 
living, dynamic entities which act and react with each other 
and with their environment. . . ," 27 

In the Senate debates, Senator Stevens noted that in 
defining OSP, "[t]he well-being of the entire ecosystem must 



2S Id. at 416. 
26 Id. at 438-39. 
27 Id. at 152. 



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191 



therefore be kept in mind. 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." 28 

Numerous witnesses also emphasized the importance of 

continued management to the health of ecosystems in light of 

existing human interference. Thomas L. Kimball, then 

Executive Director of the National Wildlife Federation, 

expressed this position with exceptional emphasis. 

Modern man . . . has so disrupted our planet 
and ecology, poisoned and polluted the 
environment, that the only hope for much of the 
world's wildlife is for man to utilize his 
great powers of reason, science, technology, 
and persuasion to overcome or minimize the 
adverse impact of his own intrusion into the 
plant and animal ecosystem. 29 

Dr. G. Carleton Ray wrote to the Senate subcommittee, 
" [i]t must be apparent that man has already perturbed all of 
the earth's ecosystems and it is now our clear duty, as 
conservationists, to protect the future health of these 
ecosystems by managing them wisely at an international 
level." 30 In his oral testimony before the House, Dr. Ray 



■"118 Cong. Rec. 25,258 (1972). 

29 House Hearings, at 75. 

30 Qcean Mammal Protection: Hearings on S. 685. et al.. Before the 
Subcomm. on Oceans and Atmosphere of the Senate Comm. on Commerce . 92d 
Cong.,' 2d Sess. 836 (1972) [hereinafter Senate Hearings). 



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192 



noted that "no ecosystem on earth has escaped the hand of man. 
We have already intervened, and often deeply, in systems 
involving marine mammals. Therefore, we must manage, if only 
to assume [sic] that this intervention is kept in control." 31 

Congressman Dingell also advocated protecting marine 
ecosystems. "The controlling issue in the controversy between 
these two views must necessarily be what is best for the 
animals themselves and for the ecosystems upon which they, and 
possibly we, depend." 32 

Witnesses discussing the management approach that should 

be employed under the MHPA also referred to the need for a 

comprehensive, ecosystem-based program. As Dr. Kenneth Norris 

of the Marine Mammal Council testified before the Senate 

subcommittee : 

The management should be based not only upon 
the biological health of the individual 
species, but upon the health of the ecosystem 
of which it is a part. . . . Such management 
must be based upon continuing reappraisal of 
the health of both animal and ecosystem. . . . 
Enlightened management today is no longer 
species management, it is instead ecosystem 
management . 33 



31 House Hearings, at 402. 
32 118 Cong. Rec. 7685 (1972). 
33 Senate Hearings, at 359-60. 

[ 19653-0001 /DA94O590 060) -22- 



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Howard Pollack, then Deputy Administrator of the National 
Oceanic and Atmospheric Administration, expressed a similar 
sentiment when he testified that "any conservation program for 
a particular species must not only include studies of that 
species, but also other organisms which interact with that 
species in the marine environment, and indeed the environment 
itself." 34 

Another government witness, Dr. Lee Talbot of the Council 

on Environmental Quality, drew a careful distinction between 

management for human versus ecological purposes. As he 

explained: 

[I]t is possible to manage a wild species for a 
maximum sustained yield under conditions which 
may alter or make less stable other parts of 
the environment. Therefore, the maximum 
sustained yield in some cases may not be 
necessarily the yield level at which the 
optimum environmental balance . . . may be 
maintained. . . . the objective of management, 
as we see it, should not be purely economic 
gain . . . but environmental balance and 
economic gain consistent with that. 35 

In 1988, the MMPA was amended to reguire the preparation 
of conservation plans for depleted marine mammals. 36 In doing 
so, Congress emphasized in the legislative history the need 
for an evaluation of the relationship between the species or 



■"Senate Hearings, at 426. 

35 Id. at 146-47. 

36 See 16 U.S.C.A. S 1383(b). 

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stock and the ecosystem of which it is a part. Thus, the 
conservation plans were to include: "(1) an assessment of the 
status of the species or stock and its essential habitat; (2) 
a description of the nature, magnitude, and causes of any 
population declines or loss of essential habitat; (3) an 
assessment of existing and possible threats to the species and 
its habitat," among other things. 37 Similarly, the legislative 
history on the section of the Act granting the Secretaries the 
power to grant permits to take marine mammals recognized that 
such permits were more likely to be necessary along the coast 
of Alaska given the large numbers of marine mammals there and 
directed the Secretaries to "work closely with the State of 
Alaska and affected user groups, especially Alaskan Natives, 
to develop effective conservation programs for marine mammals. 
These could include assessments of populations and their 
fluctuations, essential habitat, threats to species and 
habitat, and research and management needs." 38 

In many cases, concern for protecting the health of the 
ecosystems that include marine mammals took the form of 
statements regarding the impacts of pollution, witnesses and 
Members commented on the need for future study and noted that 



37 S. Rep. No. 592, 100th Cong., 2d Seas. 24 (1988). 
38 H.R. Rep. No. 970, 100th Cong., 2d Seas. 28 (1988). 



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195 



the taking of marine mammals by humans is only one of many 
causes of the decline of species and population stocks. 

Richard Denney, wildlife consultant for the American 

Humane Association, discussed a variety of threats to fur 

seals, including ocean debris, in his testimony. At the close 

of his opening statement, he noted: "[i]t has been intimated 

that the oceans are already the worst enemies of marine 

mammals, causing the death of thousands from pollution. If 

this is true, no amount of total protection will 'save' them - 

the primary objective should be international abatement of 

habitat degradation." 39 As Senator Hollings replied: 

That is the point, isn't it, Mr. Denney, that 
you take into account the entire ecosystem? 
The pollution caused to walrus and sea otter 
and other species from cadmium, mercury, DDT 
and all the other things that go into the 
ecology [sic] computer? . . . why not use that 
reverse approach? Don't lift off a moratorium 
until techniques develop and demonstrate to the 
Congress that a meaningful and persuasive case 
can be made to have open season again! 40 

The Director of Environmental Affairs for the Isaak 

Walton League, Ted Pankowski, similarly stressed the 

interconnected causes of marine mammal decline and ecosystem 

impacts in his testimony before the House subcommittee. 

[A] total ban on the taking of animals is no 
guarantee that a species will survive or do 



39 Senate Hearings, at 522. 



40 



Senate Hearings, at 522-23. 



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well. Because of other, more critical factors, 
it may only hasten that unhappy day. The 
committee knows them well — the destruction of 
habitats, the poisoning of environments, 
manipulation of resources that upset natural 
balances, over killing ... an effective 
marine mammals bill must take all of these into 
account. 41 



Mr. Pankowski stated further: " [w]e must realize that if the 
marine environment is permitted to deteriorate to a critical 
point, whether or not marine mammals are deliberately killed 
may become academic." 42 

Reflecting these concerns, the report accompanying the 
1971 House bill that became the MMPA noted the threats to 
marine mammals from ocean dumping, pesticides, heavy metals, 
reduced levels of herring for food, and high speed boats. The 
report summarized: "[m]an's taking alone, without these 
factors, might be tolerated by animal species or populations, 
but in conjunction with them, it could well prove to be the 
proverbial straw added to the camel's back." 43 

In this manner, Members of Congress, government officials 
and representatives of concerned interest groups expressed the 
common view that successful marine mammal protection required 
ecosystem protection as well. Now, more than 20 years later, 



41 House Hearings, at 516. 
42 Id. at 520. 
' 43 H.R. Rep. No. 707, 92d Cong., 1st Sess. 15 (1971) 

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the accuracy of this assessment is becoming increasingly 
apparent. Unfortunately, the tools needed to react to 
ecosystem-based problems are lacking. 

III. CONCERN OVER MARINE ECOSYSTEM DEGRADATION 
EXPRESSED UNDER OTHER LAWS 

Although the MMPA provides one of the strongest 
statements of policy in favor of marine ecosystem protection, 
concern has also been expressed under other United States laws 
and international agreements for the health of the marine 
ecosystems, in general, and the Bering Sea, in particular. 
Alaska Natives have for many years been calling attention to 
the need for ecosystem-based research and management in the 
Bering Sea. 

For example, residents of the Pribilof Islands have been 
concerned over the health of the Bering Sea ecosystem since 
the mid-1970s. At that time, the thinning of fur seal pelts 
became apparent, which gave rise to concern over the 
possibility of pollution impacts or food stress affecting the 
herd and other components of the Bering Sea ecosystem. 
Representatives of the Pribilofs began working with academic 
institutions and government agencies to assess ecosystem 
health and stability. In general, government agencies did not 
heed these concerns that widespread changes were occurring in 
the Bering Sea that reguired detailed research. 



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Concerns over the health and stability of the marine 
environment and the Bering Sea ecosystem were expressed 
repeatedly during deliberations over the Protocol to extend 
the International Convention on the Conservation of the North 
Pacific Fur Seal (the "Convention") in the 1980's. The one 
issue that both opponents and proponents of the Protocol 
agreed upon was the need for an ecosystem-based approach to 
protecting and managing the resources of the Bering Sea and 
the North Pacific Ocean. 

In 1981, Alaska Governor Hammond testified on Senate 

ratification of the 1980 Protocol to extend the Convention by 

highlighting the need to retreat from single-species 

management approaches. As he stated: 

The issue which is brought to the fore is 
whether we are in fact attempting to achieve a 
systems management approach (as is desirable) , 
including maintenance of healthy populations of 
those components affected by man, or whether we 
are pursuing mutually exclusive goals for 
different species or groups which will 
eventually have undesirable yet unnecessary 
consequences. At present we are unfortunately 
working toward the latter, at least in the 
North Pacific and Bering Sea regions. 44 

This concern was echoed in testimony submitted by the 
Villages of St. George and St. Paul, where it was stated, 
•• [i]n light of our experience it would be unwise to ignore the 






^orth Pacific Fur Seals; Hearing Before the Senate C orrro. on 
Foreign Relations , 97th Cong., 1st Sess. 55 (1981). 



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fact that the ecosystem in the Bering Sea must be managed as a 

whole." 45 

Environmental organizations voiced similar concerns. For 

example, the Center for Environmental Education (now the 

Center for Marine Conservation) emphasized that marine 

ecosystem health and stability is the primary goal of the 

MMPA. The Center called attention to the numerous problems 

that result from the failure to fulfill this goal and manage 

marine ecosystems from a multi-species perspective: 

With single species management, attention is 
focused on the dynamics of particular species 
or stocks without explicit regard to the 
interactions between those species or stocks 
and other components of the ecosystem; 

Single species management depends on a degree 
of stability and resilience of the resource 
that may not exist; 

Attention is focused on the output from 
resource use, without regard to the input of 
energy, of other natural resources, and of 
human skill and labor required to secure the 
output ; 

Single species management may admit, and even 
encourage, overexploitation. 

The greatest problem facing policy makers is 
that presently we have insufficient information 
about the numerical and functional 
relationships between species. Diligent 
acquisition of such information is of utmost 
importance if we are ever to be able to make 
conscientious resource management decisions. 
We must be able to predict the effects of 
proposed management strategies, recognizing 



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that sometimes these careful predictions may be 
askew. Successful monitoring programs which 
afford early detection of changes relevant to 
management strategies are ultimately highly 
cost effective. These programs allow us to 
avoid costly crisis oriented management. 46 

The National Audobon Society expressed the same concern. 

Elvis Stahr testified for the Society that: 

There is a most serious need to provide greater 
long-term protection to the marine environment 
of the Bering Sea and to the nationally and 
internationally significant marine bird 
colonies on the Pribilof Islands. A first step 
has been the inclusion of critical portions of 
the Pribilofs in the Alaska Maritime National 
Wildlife Refuge created by the Alaska National 
Interest Lands Conservation Act of 1980. 

We urge your Committee to explore ways in which 
existing international agreements can be 
strengthened, and new agreement forged with 
Pacific rim countries, to better protect marine 
waters of the Bering Sea from dangerous 
pollution and overutilization of resources, 
particularly fish on which marine birds and 
mammals rely for sustenance. 47 

These concerns were ultimately reflected in the 
Proclamation signed by the President in support of the 1980 
Protocol. President Reagan specified in the 1981 Proclamation 
that studies were required on the relationship between the 
size of the fur seal harvest and health of the Bering Sea 
ecosystem and that the impact of alternative forms of 



46 Id. at 60. 
47 Id. at 59. 



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employment for the Aleuts on the fur seal herd and the Bering 
Sea ecosystem. 48 

These themes were repeated in 1985 during hearings on 
ratification of the Protocol to extend the Interim Convention 
on the Conservation of the North Pacific Fur Seal. Larry 
Merculieff, then President of the Tanadgusix Corporation, 
expressed strong concern over the disjointed and species- 
specific approach to marine resources management in the Bering 
Sea and elsewhere. Sounding a theme that is now widely 
accepted by scientists and resource managers, Mr. Merculieff 
called for a more comprehensive approach to protecting marine 
mammals and managing marine resources. Noting the population 
distress being experienced by fur seals, sea lions, and two 
Bering Sea bird species, he called for an ecosystem-based 
approach for managing the Bering Sea. Mr. Merculieff 
explained that " [scientists from all disciplines, including 
seal scientists, agree unanimously that this approach is 
essential for rational resource management, but all are 
frustrated by the inherent problems." 49 As it was further 
stated: 

We . . . find it disconcerting that scientists 
from the different disciplines . . . and from 



^Presidential Proclamation (Oct. 14, 1981), 32 UST S881, S882. 

4 North P acific Fur Seal Treaty: Hearings on Treaty Doc. 990-5 
Before the Sen ate Comm. on Foreign Relations . 99th Cong., 1st Sess. 257 
(1985)' (statement of L. Merculieff). 



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different bureaucracies are not coordinating or 
synthesizing data on the species related in 
food webs in the Bering Sea. Apparently this 
is systemic and not atypical of many scientific 
research programs. 50 

Speaking specifically to the problem of fur seal, sea 
lion, and seabird population declines in the Bering Sea, Mr. 
Merculieff noted the link between these species and their 
reliance on pollock as a part of the food web upon which they 
were dependent was noted. The testimony called for the 
establishment of a research program that would study the 
marine ecosystem as whole. 51 This view also drew support from 
the environmental community, 52 but no action was taken. 

The importance of ecosystem-based research, management 
and protection initiatives also has been addressed under the 
Magnuson Act. Like the MMPA, the Magnuson Act includes a 
statutory requirement directed at marine ecosystem concerns. 
The Magnuson Act seeks to subject fisheries to "sound 
management . . . so as to provide optimum yields on a 
continuing basis." 53 The term "optimum" is defined as "the 
amount of fish . . . which is prescribed . . .on the basis of 



50 Id. at 251. 



S^ Id. at 211 (statement of David R. Cline, National Audobon Society) , 
256 (statement of E. V. Curtis Bohlen, World Wildlife Fund). 

53 16 O.S.C S 1801(a)(5). 



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the maximum sustainable yield ... as modified by any 
relevant economic, social, or ecological factor ." 54 The 
reference to an "ecological factor" in the Magnuson Act is 
clearly intended to reguire modifications to maximum 
sustainable yield fishery levels when necessary to ensure that 
fishing levels will not disrupt the balance of marine 
ecosystems, such as by over-fishing prey species for marine 
mammals and seabirds. 

In 1989, the demand for comprehensive multi-species- 
oriented management of marine resources was taken up by 41 of 
the world's leading marine biologists in testimony submitted 
under the Magnuson Act. The scientists noted that marine 
ecosystems are complex and subject to naturally occurring 
changes in their constituent elements. However, human 
interventions "can and do have stabilizing or destabilizing 
influences on the natural variability and cause or accelerate 
severe shifts in the composite ecosystem." 55 They noted the 
severe destabilizing impacts of these interventions in several 
fisheries around the world. To address this problem, the 
scientists called for, among actions, amendments to the 
Magnuson Act "to promote a total ecosystem perspective in 
managing the Nation's fish stocks, taking into account the 



54 Id=. S 1802(1) (emphasis added). 

"statement of Concerned Scientists on the Reauthorization of the 
Magnuson Fishery Conservation and Management Act 3 (1989). 

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204 



protection of essential habitat, including the habitats 
essential to early life histories, and consideration of marine 
species neither harvested nor conserved." 56 

Recognizing the need to address predator-prey 

relationships and other ecological factors in setting fishery 

harvest levels under the Magnuson Act, the Marine Mammal 

Commission in a 1990 report to the Secretary of Commerce on 

the marine mammal incidental take program under the MMPA 

recommended that decision-making under the Magnuson Act follow 

a more comprehensive, ecosystem-based approach. As the 

Commission stated: 

The reference to "ecological factor" in the 
definition of "optimum yield" is interpreted by 
the Marine Mammal Commission to mean that, to 
collectively give effect to the Marine Mammal 
Protection Act and the Magnuson Fishery 
Conservation and Management Act, the Fishery 
Management Councils and the National Marine 
Fisheries Service must insure that estimates of 
optimal fishery yields take into account food 
requirements (and uncertainties related 
thereto) of marine mammals and define 
"overfishing" to include any fishery-related 
reductions in fish or shellfish stocks that 
would result in reduction of marine mammal 
populations below their maximum net 
productivity level calculated with respect to 
abundance prior to fishery development. 57 



56 Id. at 4. 

57 Marine Mammal Commission, Recommended Guidelines to Govern the 
Incidental Taking of Marine MammalB in the Course of Commercial Fishery 
Operations After October 1993 , (July 1990). 



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To address this concern, the Commission recommended that 
Magnuson Act regulations be developed to require the 
relationship between fisheries yields and marine mammal food 
requirements be taken in account in setting commercial fishing 
catch limits. This action has not been taken. 

In recent months, Alaska Natives have once again called 
for Congressional action under the Magnuson Act to foster 
ecosystem-based research and management and to prevent fishing 
from occurring at levels that deplete other resources. As 
stated in testimony before the House Merchant Marine and 
Fisheries Committee that: "[ conventional wisdom is telling 
everyone that the [pollock] fishery is healthy in the Bering 
Sea but . . . fourteen key species are in decline, at least 
six of which are in the pollock food web." 58 These systemic 
indicators are ignored at the peril of those dependent on the 
ecosystem, and its was recommended that the species-specific 
approach to management under the Magnuson Act give way to a 
more progressive ecosystem management regime. 59 

Similar testimony was submitted before the Senate 
Commerce Committee that •• [e]cosystem approaches to research 



Hearing on Reauthorization of the Magnuson Fiaherv Conservation and 
Management Act before the Housb Subcommit t ee on Fisheries Management. House 
Committee on Merchant Marine a n d Fisheries . April 21, 1993 (testimony of 
Larry Merculieff). 



59! 



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206 



and management need to be pursued vigorously. Conventional 
approaches are not working. The Magnuson Act reauthorization 
must take into account the reality of the inter-relationships 
among the species and the ecosystem which those species live 
in." 60 Accordingly, he recommended that the Magnuson Act be 
amended "to ensure that the health of the ecosystem as a whole 
will allow a sustained biological diversity and thereby 
healthy communities and a healthy sustainable industry." 61 

IV. DECLINE OF TEE BERING SEA ECOSYSTEM 

Over the last 20 years, the Bering Sea ecosystem has 
undergone significant reductions in a number of its component 
species. During this time period, populations of Northern fur 
seals, Steller sea lions, harbor seals, and four species of 
fish-eating seabirds, (thick billed-murres, common murres, 
black-legged kittiwakes, and red-legged kittiwakes) have all 
experienced substantial, unexplained declines in their number, 
indicative of an ecosystem-wide injury. Several important 
Beringian waterfowl species, including Pacific brant geese, 
emperor geese, spectacled eider and Steller' s eider have also 
undergone population declines that are not fully understood. 



60 Hearina on Reauthorization of Magnuson Fisheries Conservation and 
Management Act before the Senate Subcommittee on Merchant Mari ne. Senate 
Committee on Commerce. Science and Transportation . June 30, 1993 (testimony 
of J. Anthony Smith). 



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Presently, the cause or causes for these declines are not 
known; however, a list of potential causes includes 
entanglement in lost or discarded fishing gear, incidental 
take in driftnet, trawl, and other fisheries; decreased food 
availability due to overharvesting of pollock or other 
finfish; decreased food availability due to climate or other 
natural changes affecting the distribution, abundance, or 
productivity of important prey species; natural diseases; 
intentional shooting; and environmental pollution. 62 
Regardless of the precise reason these changes are occurring, 
the fact remains that a major unexplained reduction in numbers 
of animals in the Bering Sea has taken place. Such 
reductions, left unchecked, may result in irreversible change 
in the structure and productivity of the entire ecosystem. 

Traditionally, the Bering Sea has maintained a high level 
of biological productivity, supporting a substantial food web 
which includes up to 25 species of marine mammals, 32 species 
of seabirds, 30 species of waterfowl, and sizable populations 
of fish. In turn, this productivity has allowed the Bering 
Sea to play host to a number of commercial industries. Prior 
to 1900, economic attention centered around the acquisition of 
Northern fur seal and sea otter furs. Overhunting soon 



62 Gordon L. Swartzman and Robert J. Hofman, Uncertainties and 
Research Needs Regarding the Bering Sea and Antarctic Marine Ecosystems 1 
(Final Report for Marine Mammal Workshop Held December 12-13 1990). 



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depleted these animals, thus shifting the economic focus to 
fisheries. While initially salmon, herring, halibut and crab 
were the primary catch, within the past 30 years, pollock has 
become by far the most significant fishery in the Bering Sea. 63 

Since the mid-1970s, a number of the Bering Sea's 
populations of marine mammals, seabirds and waterfowl have 
suffered dramatic declines in their numbers. Of the marine 
mammals, Northern fur seals, Steller sea lions and harbor 
seals have all been greatly reduced in population size. The 
Steller sea lion, whose population size dropped from greater 
than 100,000 in the 1970s to a mere 35,000 today, is in such a 
state of decline that it is now listed as a threatened species 
under the Endangered Species Act, and it is a serious 
candidate for downlisting to endangered. In addition, the 
Northern fur seal has declined from a population of about 1.8 
million in the 1950s to roughly half that figure today, thus 
gualifying as a depleted species under the MMPA. 

In addition to marine mammals, seabirds and waterfowl of 
the Bering Sea have also suffered significant declines in 
their number. In the Pribilof Islands, recognized as home to 
the largest seabird colonies in the Bering Sea, and among the 
largest of the Northern hemisphere, some colonies of murres 
and kittiwakes may have declined by as much as fifty percent 






*Id. at 12. 



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in the period from 1976 to 199 l. 64 In the past twenty years 
Pacific brant geese have declined approximately twenty percent 
and Bering Sea colonies have declined up to sixty percent. 65 
Emperor geese rely on the Bering Sea throughout the year and 
their population has declined seventy percent in the past 
thirty years. Spectacled eiders and Steller's eiders may have 
declined up to ninety and fifty percent, respectively, in the 
past twenty years. Spectacled eiders are listed as threatened 
species under the Endangered Species Act and the Steller's 
eider is proposed for similar listing. 

While a variety of explanations have been advanced to 
account for these radical declines in Bering Sea animal 
populations, none have proven wholly satisfactory. 66 As 
Russian scientist Alexander Golovkin has stated, " [i]n a 
balanced and dynamically stable environmental system, all 
components of the food web are interrelated and react keenly 
to changes in population dynamics of any of the 
participants." 67 Thus, regardless of the explanation, an 



64 Alexander N. Golovkin, Colonial Seabirds of the Pribilof Islands 1, 
7 (August 1991) (on file with the City of St. Paul). 

65 Letter from Christian P Dau, Wildlife Biologist, United States 
Department of the Interior, Izembek National Wildlife Refuge, to Larry 
Merculieff, Coordinator, The Bering Sea Coalition (October 26, 1993). 

66 See Swart zman and Hofman, supra , at 1-6. 

67 Golov)cin, supra , at 16. 

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injury to any one part of the Bering Sea ecosystem will almost 
certainly impact the entire ecosystem. 

In this mutually dependent relationship, removal of one 
component part necessarily effects all the other parts. 
Therefore, one theory that may help to explain the current 
problems in the Bering Sea points to the fantastic growth in 
the Bering Sea pollock fishery as being responsible for the 
recent marine mammal, marine bird and fish population 
declines. According to Dr. Golovkin, "[p]ollock presently 
constitute about 52% of the diet of Pribilof seabirds, about 
85% of the total fish biomass of the region, and about 85% of 
the summer diet of fur seals." 68 Moreover, Golovkin calculates 
that the total combined consumption of pollock by birds and 
fur seals in the Pribilof region theoretically exceeds the 
average total biomass of edible pollock in the same region. 69 

Lacking a single, definitive explanation for the marked 
decline of these populations and in light of their 
demonstrated inter-reliance, the existing crisis can only be 
the result of, and result in, ecosystem-wide impacts. 
Therefore, in the face of causal uncertainty, all potential 
causes must be examined, and if needed, addressed through an 
ecosystem-wide approach. 



*id. at 12. 



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V. OTHER MARINE ECOSYSTEMS IM DECLINE 

The Bering Sea is perhaps the most pressing example of a 
marine ecosystem currently in decline. Unfortunately, it is 
not the only example. The Gulf of Alaska is the home to 
numerous species of marine mammals and marine birds whose 
populations are experiencing declines or whose status remains 
uncertain. This region now shares many of the problems which 
are affecting the Bering Sea, and declines in both ecosystems 
are interrelated since the marine mammals and marine birds 
inhabit the Bering Sea and the Gulf of Alaska. 

On the East Coast, the Chesapeake Bay, considered one of 
the world's most productive estuaries and home to several 
marine mammal species, is showing signs of disturbing declines 
in species such as submerged aquatic grasses, striped bass, 
shad, oysters, clams, waterfowl and a decrease in the overall 
Bay water quality. 70 Scientists have also become concerned 
over the decline in numbers of the once abundant Chesapeake 
Bay Blue Crab. 71 These contemporaneous, unexplained declines 
are indicative of an ecosystem-wide injury. 



"Chesapeake Bay Critical Area Commission, Critical Area and You: The 
Chesapeake's First Line of Defcnnp 1 (Hugh M. Smith ed. , n.p., n.d.). 

71 D'Vera Cohn, As Crab Y ield Falls. Scientists Claw for Clues . Wash. 
Post, August 8, 1993 at Al, A18. 



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212 



Also on the East Coast, several fish stocks have been 
severely depleted (herring, haddock, hake) as a result of 
overfishing in the Georges Bank marine ecosystem off the coast 
of New England. The effect of this overfishing is not fully 
understood, but it may be causing, or be the result of, 
systemic injury. 72 

On the West Coast, overexploitation of the Pacific 
sardine has led to a number of questions regarding ecosystem- 
wide impacts in the California Current region. It has been 
observed that " [r]emoval of a major component such as the 
Pacific sardine (unexploited biomass averaging about 3 million 
tons) from the California Current food web would presumably 
have measurable effects on other components of the 
ecosystem." 73 Notable in this context, concurrent with the 
crash of the Pacific sardine fishery, brown pelicans, which 



72 ln response to this depletion, the United States Department of 
Commerce ( "DOC" ) has recently imposed an emergency rule prohibiting haddock 
fishing in certain areas of Georges Bank The DOC noted: 

[Hjaddock stocks on both Georges Bank and in the Gulf of 
Maine . . . are at all-time low levels of abundance. 
Adult stock biomass is lower now than at any point since 
the inception of stock assessments. Haddock landings in 
1993, which reflect the stock condition, are expected to 
be the lowest in recorded history. 

59 Fed. Reg. 26, 27 (January 3, 1994). 

73 Alec D. MacCall, Changes in the Biomass of the California Current 
Ecosystem , in Variability and Management of Large Marine Ecosystems 33, 40 
(Kenneth Sherman and Lewis M Alexander eds., 1986). 



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rely upon sardines as a food source, began experiencing 
significant levels of reproductive failure. 74 

Additionally, recent events in the Caribbean Sea indicate 
that it too is suffering from an ecosystem-wide injury. These 
include "overfishing of reef resources, an epizootic of the 
spiny sea urchin . . ., widespread bleaching of corals, plus 
white band and black band diseases, fish kills, oil pollution, 
mining, land erosion associated with deforestation, and 
population declines of several species of sea turtle." 75 
Moreover, an increase in the already substantial number of 
cruise ships, departing from a number of countries, but 
largely from the United States, will further stress the 
Caribbean ecosystem. 76 

From an international perspective, the recent United 
Nations conference on the depletion of fisheries worldwide has 
prompted scientists and other observers to reflect on the 
impact of fishing on other portions of the marine ecosystem. 
The United Nations Food and Agriculture Organization has 
acknowledged that overfishing has disrupted the food chain and 
caused massive collateral damage to species like porpoises, 



74 Id. at 47. 

75 William J. Richards and James A Bohnsack, The Caribbean Sea A Large 
Marine Ecosystem in Crisis in Large Marine Ecosystems . 44, 45 (Kenneth 
Sherman, Lewis M Alexander and Barry D. Gold eds., 1990). 

76 Id. at 51. 



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sea turtles and whales in a number of marine ecosystems. 77 
Additionally, some fisheries that are already closely managed 
are nevertheless in decline, suggesting that ecosystem health 
issues such as habitat destruction or persistent pollution may 
be impacting the stocks. As the participants in this 
conference have recognized, making management decisions on the 
basis of looking only at individual constituent elements of 
marine ecosystems no longer represents an adeguate response to 
the systemic problems plaguing the oceans and coastal regions 
today. 78 

On an international level, numerous large marine 
ecosystems have experienced, or appear to be entering, periods 
of system-wide degradation and injury to living marine 
resources. A partial list of these areas includes the Barents 
Sea, the North Sea, the Great Barrier Reef, the Gulf of 
Thailand, and the Yellow Sea. The problems that have been 
documented in all of these areas would benefit from the 
application of ecosystem-based research and management 
programs . 



77 Plunderinq the Seas , N.Y. Times, Aug. 2, 1993, at A14 

78 Id. . see aleo International Union for the Conservation of Nature 
( " IUCN" ) ; Draft Guidelines For the Ecolooical Sustainabilitv of 
Nonconsumptlve and Consumptive Pees of Wild Species , May 28, 1993 at 3 
(which, if adopted by the IUCN General Assembly will "provide Criteria and 
Requirements .... intended to guide policies, laws and administrative 
procedures [of member States] aimed at ensuring that any uses of wild 
species are sustainable and that the affected species and their supporting 
ecosystems are conserved."). 



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VI. PROPOSED MMPA AMENDMENT 

To address these problems, prompt action is required to 
identify the most critical uncertainties and research needs. 
Because so little is known about the ecology and biological 
relationships of large marine ecosystems and how to take 
account of this uncertainty in management and protection 
programs, it is necessary to begin with a thorough, 
comprehensive review of the scope and magnitude of the problem 
and how it might be overcome. This is the approach 
recommended in this proposal. In the case of the Bering Sea, 
where widespread population declines have been documented, a 
more aggressive approach is required to build upon existing 
data and knowledge and, as soon as possible, undertake 
meaningful ecosystem-based resource management and marine 
mammal and seabird protection programs. In the past, 
undertaking such effort has been frustrated because several 
different agencies with conflicting objectives and 
responsibilities were involved. To circumvent these problems, 
a Congressional mandate to pursue these initiatives through an 
independent, objective review body is required. 

The approach called for in this proposal is intended to 
identify and prevent ecosystem-wide injury before it reaches a 
crisis stage. As a case in point, the recently released 
Report of the Forest Ecosystem Management Assessment Team 
addressing the ecological, economic and social issues arising 

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under the northern spotted owl controversy, points to the need 
to use an ecosystem-based management program to reverse the 
many wildlife species problems occurring throughout the 
Pacific Northwest. In that context, the crisis has already 
taken hold, with several wildlife species and vital economic ■ 
interests that depend upon natural resource utilization in 
jeopardy. With foresight in research and management, it 
should be possible to avert these problems before they occur 
in the Bering Sea and other large marine ecosystems. If 
ecosystem-based research, management, and protection 
initiatives are not initiated soon for the marine environment, 
in general, and the Bering Sea, in particular, the northern 
spotted owl crisis in the old growth forests of the Pacific 
Northwest may soon be accompanied by an equally severe crisis 
on the high seas off the coast of Alaska or elsewhere. 

For purposes of carrying out the proposal described in 
this report, the following amendment to the MMPA is requested: 

Amend section 110 of the MMPA by adding new subsections 
(b) and (c) to read as follows: 

(b) (1) The Secretaries of Commerce and the Interior, 
in consultation with the Marine Mammal Commission, shall 
within 60 days of enactment contract with the National Academy 
of Sciences for an independent assessment of natural and 
anthropogenic factors affecting the health and stability of 



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marine ecosystems of which marine mammals are a part, and 
measures necessary to restore and maintain those large 
ecosystems and their key components (particularly those in 
whole or in part under United States jurisdiction or subject 
to United States obligations under international agreement) in 
the state which will: 

(A) ensure the fullest possible range of management 
options for future generations; 

(B) allow the sustainable consumptive and non- 
consumptive uses of renewable resources; 

(C) permit non-wasteful, environmentally sound 
development of non-renewable resources; and 

(D) ensure and protect the continued availability 
of marine mammals and other living marine 
resources for subsistence and handicraft 
purposes by Aleuts, Eskimos and Indians who 
dwell on the coast of the North Pacific Ocean 
or the Arctic Ocean. 

(2) The report of the study required by this section 
shall include: 

(A) definitions of "large marine ecosystem" and 

"key ecosystem components" that would be useful 



[196J3-0001/DA94OJ9O.060] -47- 



218 

for long-term conservation and management 
purposes as defined in § 3(2) of this Act; 

(B) a description of the areas that meet the 
definition of "large marine ecosystem" 
developed under paragraph (b) (1) (A) ; 

(C) a list and general description of the physical 
and biological characteristics and key biotic 
and abiotic components of those marine 
ecosystems ; 

(D) an inventory of available data and data sources 
for: (i) determining the present state of, and 
threats to, the key components of the large 
marine ecosystems identified pursuant to 
paragraph (b)(1)(B); and (ii) establishing the 
information baselines which, in conjunction 
with long-term monitoring programs, would be 
necessary to detect changes in key ecosystem 
components and to differentiate between changes 
caused by natural and anthropogenic factors; 

(E) a description of, and explanation of the 
rationale for, actions that should be taken to 
improve the comparability, accessibility, and 
utility of existing databases and data 
collected in the future to assess and monitor 

[19653-O001/DA94O590.060] -48- 3/3/94 



219 



the state of key ecosystem components and to 
evaluate the effectiveness of environmental and 
resource conservation programs; 

(F) a description of actions that would be required 
to identify gaps in knowledge of: (i) basic 
ecosystem structure and dynamics; (ii) the 
current status of, and the numerical and 
functional relationships among, key ecosystem 
components; (iii) how key ecosystem components 
have been and are being affected, directly and 
indirectly, by human activities; and (iv) how 
the key ecosystem components might respond to 
alternative management strategies; 

(G) recommendations for research and monitoring 
programs necessary to fill the identified 
critical data gaps, establish adequate 
baselines, and detect and be able to determine 
the probable cause or causes of changes in key 
ecosystem components; 

(H) establishment of a process to utilize Alaska 
Native organizations and traditional Native 
local knowledge to conduct research into the 
environmental factors, population dynamics and 
ecological relationships that control, or 



[19653-O001/DA94059O.060] -49- 



220 



structure, such ecosystems, or affect the use 
of components of such ecosystems for 
subsistence purposes; and 

(I) such other information, analyses, or 

recommendations as the Academy believes 
necessary to provide for environmentally sound 
conservation and management of marine 
ecosystems and their component parts. 

(3) The Secretaries shall request that the National 
Academy of Sciences submit a final report containing the 
results of its review to the Secretaries not later than 24 
months after enactment. The Secretaries shall transmit copies 
of the report to the Senate Committee on Commerce, Science, 
and Transportation and the House Committee on Merchant Marine 
and Fisheries, together with such comments as the Secretaries 
and the Marine Mammal Commission deem appropriate, not later 
than 90 days after it is submitted by the National Academy of 
Sciences. 

(4) Of the funds authorized to be appropriated to the 
Secretary by this section, such amounts as are required shall 
be available to carry out this subsection. 

(c) (1) The Secretaries of Commerce and the Interior, in 
consultation with the Marine Mammal Commission, shall, 
commencing within 180 days of enactment, undertake a long-term 

[19653-0001/DA940590.060] -50- 3/3/94 



221 



scientific research program to monitor and promote the health 
and stability of Bering Sea marine ecosystem and to fill data 
gaps and resolve uncertainties concerning the causes of, and 
necessary actions to reverse, population declines of marine 
mammals, marine birds, and fish stocks of that region. Such 
program shall address, but be need not be limited to, the 
research recommendations that will be included in the report 
to be issued in 1994 by the National Academy of Sciences, 
under contract with the Department of State, on the Scientific 
and Technical Understanding of the Bering Sea Ecosystem. The 
long-term program established under this section shall include 
research on subsistence uses of the biological resources of 
the Bering Sea by Alaska Natives and how to best provide for 
the continued opportunity for such uses. 

(2) To the maximum extent practicable, the research 
program undertaken pursuant to paragraph (c) (1) shall be 
conducted in Alaska at a location or locations where 
researchers will have access to the ecosystem studied, and 
where the environmental systems and biotic and abiotic factors 
can be monitored. As part of this process, when carrying out 
research pursuant to paragraph (c) (1) of this section, the 
Secretary shall, upon the request of a qualified Alaska Native 
organization, contract with that organization to conduct such 
research pertaining to the use of marine ecosystem resources 
for subsistence purposes. Research facilities used pursuant 



[19653-0001/DA940S90.060] -51- 



BOSTON PUBLIC LIBRARY 

3 9999 05706 7066 

to this subsection shall be made available to the U.S. Fish 
and Wildlife Service for interpretation and visitor service 
purposes in connection with units of the National Wildlife 
Refuge System in Alaska. The facilities shall be used as a 
repository and clearinghouse for studies, research data, 
abstracts and other information pertinent to the health and 
stability of the Bering Sea. As deemed necessary and 
appropriate, either the Secretary of the Interior or the 
Secretary of Commerce shall establish additional research 
support facilities in the Bering Sea region. 

(3) The Secretaries of Commerce and the Interior and the 
Commission shall specifically address the status and findings 
of such research program in their respective annual reports to 
Congress as reguired by sections 103(f) and 204 of this Act. 

(4) Of the funds authorized to be appropriated to the 
Secretary by this section, such amounts as are reguired shall 
be available to carry out this subsection. 



(19653-0001/DA94O590.060) -52" 

o 



79-705 (228) 






ISBN 0-16-044382-2 



780160"443824 



90000