In 1972, the United States Congress enacted the Marine Mammal Protection Act ("MMPA"), finding that certain species and population stocks of marine mammals were in danger of becoming extinct or depleted as a result of human activities. The term "marine mammal" under the MMPA means any mammal morphologically (biologically structured or formed) adapted to the marine environment (including sea otters members of the Sirenia, (manatees) Pinnipeida, (seals and sea lions), and Cetacea, (whales and dolphins), or primarily inhabits the marine environment (such as the polar bear). While dolphins are not the only marine mammal protected under the MMPA, Congress was especially concerned with the harmful impact upon dolphins a result of the tuna fishing industry. [Congress heard testimony regarding the millions of dolphins incidentally killed during tuna fishing.]
A primary objective of the MMPA is to maintain the health and stability of the marine ecosystem by sustaining marine mammal populations. In the MMPA, Congress declared a new policy that stated that marine mammals under the act should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem. [The 1972 version stated this as a primary purpose.] In other words, Congress recognized that marine mammals have an important role in the marine world, and if too many of them are killed, then the whole marine environment will become unbalanced and suffer. To achieve this policy, Congress ordered measures be taken immediately to replenish any species or population stock which had already diminished. In particular, Congress sought to protect essential habitats, including rookeries, mating grounds, and areas of similar significance for marine mammal from the adverse effect of human activities.
The method chosen by Congress to achieve the policies of the MMPA is to prohibit the "taking" of marine mammals in the United States and by United States citizens on the high seas. [Taking is perhaps the key term under the MMPA in terms of court decisions.] It also includes a ban on the importation of marine mammals and marine mammal products into the country, with certain exceptions. The term "take" is defined in the statue to mean "to harass, hunt capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." However, the definition of "taking" is more complex than a simple definition can explain. For example, courts have construed taking by harassment to include popular "Swim-With Dolphins" activities and feeding dolphins in the wild.
The MMPA provides that the moratorium on taking of marine mammals can be waived for specific purposes if the taking will not disadvantage the affected species or stock. [With regard to commercial fisheries, there is the expressed goal of zero mortality.] It allows permits to be issued to take or import any marine mammal species to conduct scientific research or to enhance the survival or recovery of a species or stock. [Even photographs under this exception are subject to permits.] Permits may also be issued to allow for the taking of a marine mammal from the wild for the purposes of public display. These permits are very specific and designate the number and species of animals that can be taken, as well as time, date, location, and method of takings. [This is but one issue related to dolphins in captivity.]
Virtually all tuna sold in cans today is caught in nets with a method called "purse seining." Modern seining is a highly technical procedure, developed in the late 1950s when fishermen discovered that yellowfin tuna in the eastern tropical Pacific Ocean ("ETP") aggregated beneath schools of dolphins for unknown reasons. Since that discovery, the predominant tuna fishing method in the ETP has been to encircle schools of dolphins with a fishing net to capture the tuna concentrated below. Millions of dolphins died in the early years of this fishery that resulted in large public outcry and finally the MMPA. Amendments to the MMPA from 1984 to 1992 resulted in great reductions in the number of dolphins caught in the tuna purse seine fishery in the ETP. However, foreign participation in the ETP continued to increase. Mortality was managed under the voluntary International Dolphin Conservation Program ("IDCP") supported by the Inter-American Tropical Tuna Commission ("IATTC"). Since 1992, nations participating in the fishery have worked to negotiate more substantial international conservation measures for dolphins and tuna in the ETP. For example, through the IDCP, observed dolphin deaths have been cut from 133,000 in 1986 to fewer than 2,000 annually since 1998. [The international aspect to dolphin protection implicates GATT and a host of other agreements.]
The National Marine Fisheries Service ("NMFS") is the federal agency responsible for administering the MMPA, as well as the enforcement of other statutes that protect marine mammals. The MMPA is the primary law that governs the conservation, and ultimately the survival, of dolphins as they continue to be in captivity for research and public display, as well as contacted in the wild by human activity.
For more on dolphins, see Detailed Discussion.