Full Title Name:  Detailed Discussion: The Global Protection of Whales

I. Introduction

A. Why Whales need Protection- The History of the Human-Cetacean Interaction

The world has been killing whales since around 800 A.D. Whales were hunted for their oil, meat, and whalebone. They were also turned into raw material for products including shoe polish, dog food, margarine and tennis racket strings. For centuries, the industry operated on a "boom and bust" basis. Coastal species in Europe, and then in North America were decimated by whalers. Then, when the need for whale products increased, these hunters moved on to target open ocean or "pelagic" species. The fin, the right, the humpback, the bowhead, the sei, the blue, and the sperm whales were hunted to the brink of extinction.

B. Technological Developments in Whaling

Technological developments in the mid-Nineteenth century spurred whalers to increase their kill. The steamboat, invented in the 1860’s, and the exploding harpoon gun increased the certainty that human hunters would prevail in their pursuit of the whale. In 1903, floating factory ships were introduced. With these ships, whalers could remain at sea for months while processing tons of whale products. These new technologies were responsible for bringing about the drastic population reductions experienced by many whale populations. As a result, whale populations were led to the brink of extinction. In 1931 alone, 43,129 whales were killed. Matanich, A Treaty Comes of Age for the Ancient Ones , 8 Int’l Legal Persp. 37 (1996).

C. The Protection of Whales

This discussion will focus on the global protection of whales, beginning with the International Whaling Commission. The first section will focus on the problems arising from legally permitted whaling, the Pelly and Packwood-Magnuson Amendments, and conclude with a discussion on the United Nations Convention on the Law of the Sea. The second section of the discussion involves United States and International laws protecting whales, beginning with the Marine Mammal Protection Act. This section will focus on the exceptions and controversy of the MMPA. Section two also discusses The Endangered Species Act and Treaty of CITES. The third section of this discussion involves additional threats to whales and will focus on the problems of fishing nets, pollution, ship collisions, and whale watching and how human actions can have an effect on whale populations.

II. A Look at Whaling Today - The International Whaling Commission

Early attempts to regulate whaling proved unsuccessful. Finally, in 1946, the International Convention for the Regulation of Whaling (ICRW) was drafted. Fifteen nations gathered in Washington D.C. for the drafting. The preamble of the ICRW announces in general terms the objects and purposes of the Convention. It recognizes the interest of the nations "in safeguarding for future generations the great natural resources represented by the whale stocks," and acknowledges historic over-fishing of whales and the subsequent need for regulation "without causing widespread economic and nutritional distress." Finally, the Preamble states the main objective of the ICRW as "proper and effective conservation of whale stocks" enabling the "orderly development of the whaling industry." International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, T.I.A.S. No. 1849, pmbl.

The ICRW first established a detailed set of whaling regulations and quotas, called a schedule, setting restrictions and limits on whale harvesting. The International Whaling Commission (IWC) was then created to enforce the provisions of the ICRW.

A. Duties of the IWC

The IWC is responsible for amending the schedule to promote both the conservation and utilization of whale resources. Participation in the IWC is not limited only to states involved in commercial whaling. The IWC meets annually and is composed of one voting representative from each member nation, or "party" to the IWC, who may be accompanied by experts or advisors. Id . at art. III (1). There are currently 40 countries that are members of the IWC.

The main duty of the IWC is to amend the Convention’s Schedule of Regulations by designating protected species, open and closed whaling seasons and waters for whaling, determine size limits, methods and intensity of whaling, types of gear to be used, and methods of measurement and maximum catch returns. The IWC also encourages, coordinates and funds whale research, publishes the results of these and other scientific research and promotes studies into related matters such as the humaneness of the killing operations.

The IWC has three committees to assist it in performing these functions. The Scientific Committee analyzes data on whales and makes its recommendations to the Technical Committee. The Technical Committee drafts amendments for consideration by the IWC at its annual meetings. The Finance and Administration Committee oversees the entire IWC.

B. Before the Moratorium - The Focus of the IWC

In its first twenty years, the IWC focused on managing the business aspects of whaling. In the 1960’s this focus shifted to a focus on conservation following the depletion of several major whale populations, including the humpback and blue whale populations. As the depletion of whale populations continued, the IWC was forced to institute an indefinite ban on whaling.

C. The Moratorium

In the 1970’s a number of non-whaling and anti-whaling states joined the IWC and eventually gained a majority over the number of pro-whaling nations. Specifically, the United States, which was previously considered to be a major whaling force, became a strong anti-whaling component of the IWC. The United States, along with other nations pushed for a moratorium - an absolute ban on whaling. In 1986, the IWC instituted a 10-year moratorium on commercial whaling to properly determine the status of whale populations and give depleted populations an opportunity to recover. The whaling nations, such as Russia, Norway, and Japan, were granted a three-year phase-out period to gradually bring their practices to an end. This moratorium has since become an indefinite ban. See Chairman’s Report of the Thiry-Fourth Meeting of the International Commission on Whaling, IWC Doc. No.21 (1982).

D. Where Problems Arise- Legally Permitted Whaling

While under a commercial moratorium, the Treaty still allows for subsistence and scientific whaling. The ambiguity of the subsistence whaling exception and "loophole" of the scientific whaling exception have caused numerous problems, which undermine IWC regulations. As a result, both of these exceptions have led to the ineffectiveness of the IWC.

i.  History of the Subsistence Whaling Exception

The subsistence whaling exception has caused several problems for the IWC. Subsistence whaling is the taking of a limited number of whales by certain indigenous peoples for their own use. Currently there are only four aboriginal subsistence whaling operations explicitly recognized by the IWC: bowhead whaling off Alaska, humpback and minke whaling off Greenland, gray whaling off Siberia, and humpback whaling in the Caribbean. Individuals who claim this exception must meet the following requirements:

(1) whaling for purposes of local aboriginal, indigenous or native people who share strong, community, family, social and cultural ties related to a continuing traditional dependence on whaling and on the use of whales; (2) traditional uses of whale product by local aboriginal, indigenous or native communities to meet their nutritional, subsistence and cultural requirements; and (3) subsistence catches of whales made by aboriginal subsistence whaling operations.

G.P. Donovan, The Ad Hoc Committee Working Group on Development of Management Principles and Guideline for Subsistence Catches of whales by Indigenous People, International Whaling Commission and Aboriginal/Subsistence Whaling: April 1979 to July 1981, Special Issue 4 (1981).

The key distinction employed by the IWC between commercial and subsistence whaling is that the former is conducted for profit, while the latter is for survival and cultural purposes. This distinction is immediately problematic because in the modern world it is virtually impossible to distinguish nutritional subsistence from economic subsistence, and because concessions have allowed some who were granted aboriginal subsistence rights to engage in limited commerce with whale products. Hodges, The Cracking Façade of the International Whaling Commission as an Institution of International Law , 15 J. Envtl. L. & Litig. 295 (2000).

The phrase "aboriginal subsistence" was not defined by the ICRW; rather, the phrase was left vague due in part to the extremely limited and specific nature of the exemption. This has led to problems. One of these problems is the Makah Tribe and Norwegian Coastal Fisherman controversy.

ii.  The Controversy between the Makah Tribe and Norwegian Coastal Fisherman

Recently, the Makah, a Native American tribe, were granted the right to hunt five gray whales under the aboriginal subsistence exemption to the ICRW. The result of granting the Makah this exemption has made the exception overly broad. The second prong, requiring a nutritional subsistence need showing, has essentially been eliminated.

There was no claim in the Makah’s petition to the IWC that they rely on whale meat for nutrition subsistence needs; rather, their petition focuses on the importance of whaling to their culture and the positive effect that the whale hunt would have on their community’s ills. Allowing the Makah to resume whaling under the aboriginal subsistence exemption has expanded the ambiguity of the already ambiguous exemption. As a result, some argue that the exception should be extended to Norwegian coastal fisherman.

The failure of the IWC to seek enforcement of the two-prong subsistence requirements may serve to estop the IWC from requiring that future petitioners demonstrate both prongs. However, two remaining distinctions may still bar small coastal fishing communities from meeting the requirements of the exemption. First, the exemption requires that the whale meat be consumed locally. Second, the exemption is granted to aboriginal communities.

Proponents in favor of the Norwegian coastal fisherman exemption argue that the only viable reason for the IWC to deny them a quota under the exemption is the "aboriginal" requirement because Alaskan Inuit’s and Makah have been allowed to sell non-edible whale products, showing a recognition that mere nutritional subsistence alone does not meet their meet, but that economic subsistence is also necessary. Proponents state that Norwegian coastal fisherman should be granted subsistence quotas for whales because their claims fall within the broad parameters of the aboriginal subsistence exemption as applied to the Makah quota, and secondarily to avoid resorting to a race-based determination. Opponents of the grant claim that granting a quota under the exception would only serve to muddy the already muddied waters of the IWC. Hodges, The Cracking Façade of the International Whaling Commission as an Institution of International Law , 15 J. Envtl. L. & Litig. 295 (2000).

iii.  Domestic Controversy - Adams v. Vance

The United States has also had an opportunity to express its opinion on the Aboriginal Subsistence Exemption in the case of Adams v. Vance , 570 F.2d 950 (D.C. 1977). This case arose because the IWC banned Eskimo hunting of the bowhead whale, subject to objection by the United States. The United States decided against objecting. The controversy arose out of concern for survival of the bowhead whale.

The IWC decided that it was eliminating the subsistence hunting exemption which had been given to Eskimos to hunt bowheads. The United States prepared an environmental impact statement as a basis for the decision of whether to object. The U.S. Court of Appeals for the District of Columbia decided that while the ban on whaling may cause irreparable injury to the Eskimos, that injury is by no means certain. As a result, the court decided that the United States would not present an immediate objection to the ban. Instead, they held that at the next IWC meeting the United States will ask the IWC to reconsider its action, considering the shared concern of all nations for unique native cultures and the United States’ steps toward domestic regulation of whaling. Therefore, the Eskimos would only be injured by the loss of whaling for one year. It will remain open to the United States to object to the quota. Id ., ( See also , Hopson v. Kreps , 622 F.2d 1375 (9th Cir. 1980) where the court held that the United States did not exceed its limits when it eliminated the exemption for subsistence whaling as it applies to Alaskan Eskimos.)

iv. Scientific Exception- The Loophole

Scientific whaling is the regulated taking of whales that are not considered to be threatened or endangered for the purpose of furthering knowledge about whales. The provision of the ICRW providing for a scientific research exception has been the most controversial of all the ICRW provisions. This provision provides:

Notwithstanding anything contained in this Convention, any Contracting Government may grant to any of its nationals a special permit authorizing that nation to kill, take, and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fits and the kill, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of the Convention.

ICRW, supra, art. VII.

This exception has become a loophole used to undermine IWC regulations. Prior to 1986, countries wishing to subvert IWC quotas on specific whale stocks modestly utilized the exception. With the imposition of the moratorium on commercial whaling, however, Japan and other countries have systematically invoked the exception to effectively continue the practice of commercial whaling.

The exception has become a major loophole utilized to undermine IWC regulations and conservation decisions during the moratorium since "researching" countries are permitted to use the whale meat collected after experimentation in any manner they deem acceptable as long as the meat is not exported outside of the country. Since the moratorium entered into force, Japan, Norway and Iceland have issued scientific permits to their nationals. For the last five years, only Japan has issued permits. All permits must be submitted to the IWC’s Scientific Committee for review to determine whether the study is methodologically sound, but the country retains the ultimate responsibility for the issuance.

In the late 1980’s, controversy arose when Japan indicated it would take large male sperm whales under the scientific research exception in order to determine the whales’ primary prey. The scientific community had known for over a century that the primary prey of the sperm whale is the squid. More recently, Japan has argued that scientific research is justified to determine accurate population levels of certain whale stocks, which it believes to be at harvestable levels. These "feasibility studies" are conducted by taking large numbers of lethal samples from endangered whales in order to gain a more complete understanding of sustainable catch limit. The IWC adopted a resolution to strongly urge Japan to reconsider these studies. Nevertheless, Japan has continued its "feasibility studies."  This demonstrates one of the failures of the IWC, the inability to punish infractions. Ruffle, Resurrecting the International Whaling Commission , 27 Brooklyn J. Int’l L. 639 (2002).

E. The Failure of the IWC - Discovering and Punishing Infractions

Although the IWC has played an important role in the international effort to protect whales from extinction, many of its rules have left it without the weapons to enforce its own regulations. Violators of IWC regulations and quotas have little to fear. Throughout the IWC’s history it has consistently received unfavorable reviews, primarily because of its inability to fully enforce its own rules. As a result, nations may, by threatening to object to the IWC’s restrictive amendments, coerce the IWC into adopting a weaker position by leading the Commission to believe that some conservation is better than no conservation at all.

IWC regulations have failed to be effective for several reasons. First, any country that disagrees with the IWC’s quotas may, by filing a timely objection, exempt itself from following these set quotas, and the country is then not bound by any restrictions on the number of whales it harvests. The IWC in practice can only regulate whaling with the consent of each party to the Convention. Following notice by the IWC to the ICRW member nations of a schedule amendment, an amendment becomes effective as to member nations in ninety days. But, a schedule amendment does not bind any member nation presenting an objection to the amendment before the ninety-day period expires. Therefore, as a typical international regulatory body, the Commission has extremely limited power in terms of actual regulation. For example, in response to the moratorium, Japan, Russia, and Norway have objected to it and filed timely objections. As a result, the IWC is powerless to enforce its moratorium against these nations.

Second, although many nations demanded more research be performed prior to the imposition of a moratorium or quotas limiting the harvesting of specific types of whales, this research was rarely accomplished. To exacerbate the problem, current scientific methods used to determine the viability of the whale stocks were imprecise and offer inaccurate, and thus, there was little in the way of scientific support for the imposition of such restrictions. As a result, many nations either objected to the moratoriums or threatened to leave the IWC. These problems with scientific data impaired the IWC’s ability to effectively regulate whaling through the imposition of moratoriums or quotas. Viewing the scientific data as less than accurate, the IWC was reluctant to impose a restriction upon whaling nations. The IWC believed that the scientific data did not accurately reflect the current status of whale stocks and thus any restriction was scientifically unfound. As a result, whaling nations exploited the differences of opinion which existed in the scientific community to justify continued whaling practices.

Third, the rules of the IWC only allow restriction on the harvesting of whales for "commercial purposes." While the IWC can examine each request for research whaling to determine whether or not the request meets the minimum requirements for such harvesting, and the IWC may approve or disapprove of these takings, the legality of harvesting whales under the guise of "scientific research" is not affected by the IWC. Accordingly, one of the largest issues regarding the IWC is the harvesting of whales for so-called research purposes.

Fourth, all authority to punish violations is vested within the country having jurisdiction over the violations. The IWC cannot enforce activities on an international level. The IWC cannot monitor the activities of whaling ships in all the waters of the world. Therefore, much whaling occurs without the knowledge of the IWC. Lessoff, Jonah Swallows the Whale , 11 J. Envtl. L. & Litig. 413 (1996).

Lastly, under reporting also prevents a problem. A stunning example of this involves the former Soviet Union. Documents prove that the Soviet Union killed 48,477 humpback whales from 1948 until 1973. The country officially reported to the IWC that only 2,710 humpbacks had been killed. Caron, Current Development: The International Whaling Commission and the North Atlantic Marine Mammal Commission , 89 Am. J. Int’l L. 154, 171 (1995).

The various loopholes within the IWC render the Commission’s regulations and imposion of quotas meaningless. Without enforcement provisions, the IWC has little control over the most damaging practices of the most active whaling nations. The IWC’s inability to impose penalties against nations has not curtailed harvesting of whales in excess of IWC quotas and, as a result, whale stocks continue to plummet throughout the world. For example, several pro-whaling nations including Iceland, Norway and Japan have objected to the moratorium and continue to hunt some species of whales. Some of these nations have withdrawn or threatened to withdraw from the IWC. At least 14,000 whales have been killed since the moratorium took effect. Lessoff, Jonah Swallows the Whale , 11 J. Envtl. L. & Litig. 413 (1996).

One final problem facing the IWC is that several prowhaling nations, such as Norway and Japan claim that the IWC does not prohibit the harvest of whales and some whale populations have recovered to commercially harvestable levels. The IWC has a duty to allow whaling whenever it appears scientifically feasible. These nations complain that the moratorium was ostensibly imposed to perform more research on whale populations, but that anti-whaling states have stalled research efforts.

In the eyes of preservationists, the IWC was not credible as a regulatory regime until the moratorium was passed. In the eyes of whaling states, the regime becomes less credible with each new measure of protection.

Matanich, A Treaty Comes of Age for the Ancient Ones , 8 Int’l Legal Persp. 37 (1996).

F. United States Legislation - Failure to Strengthen the IWC

Although the United States was once considered a leading whaling force, it enthusiastically responded to the anti-whaling movement and has final emerged at the forefront of the controversy as a supporter of IWC policy. National concern for marine mammals induced the United States to enact laws designed to protect these creatures and increase states’ compliance with IWC regulations. More specifically, the United States has unilaterally enacted two pieces of legislation intended to augment the enforcement power of the IWC through import and fishing sanctions against countries who violate the regulations set forth by the IWC. Ruffle, Resurrecting the International Whaling Commission , 27 Brooklyn J. Int’l L. 639 (2002). 

i.  Pelly Amendment

In 1971, Congress passed the Pelly Amendment in support of the ban by the International Commission for the Northwest Atlantic Fisheries' on salmon fishing on the high seas. The scope of the amendment has since expanded to include all species of fish along with endangered or threatened species such as whales.

Pursuant to the Pelly Amendment, if the U.S. Secretary of Commerce determines that nationals of a foreign country are engaged in fishing operations or harvesting endangered or threatened species in a manner that diminishes the effectiveness of an international conservation program, he or she shall certify such fact to the President. Upon receipt of the certification, the President has the discretion to direct the Secretary of the Treasury to prohibit the importation of fish or wildlife products from the offending country. The President may choose to forgo the actual implementation of sanctions against another country in the hope that the threat will be sufficient to encourage compliance. Within sixty days of receiving the certification, the President is required to report the action taken or provide reasons for failure to take action. 22 U.S.C. § 1978 .

In 1974, the first certification instituted under the Pelly Amendment was directed at the whaling activities of Japan and the Soviet Union. Since the countries lodged timely objections to an IWC regulation decreasing the quota for minke whales, their harvests in excess of the quota were not technically violations of the regulation. Outraged at the apparent abuse, the U.S. certified both countries. Since both countries had announced their intention to strengthen their conservation efforts and abide by IWC quotas, President Ford declined to take action and notified Congress that trade sanctions would not be imposed. See , President’s Message to Congress Reporting on International Whaling Operations and Conservation Programs, Pub. Papers 47, 47-48 (Jan. 16, 1975).

In 1978, the United States again certified Chile, Peru and the Republic of Korea under the Pelly Amendment for their whaling practices in violation of IWC quotas. Crucial to note is that these countries were not members of the IWC at the time of certification. Like Japan and the Soviet Union, they too were not technically in violation of the ICRW. Again, the President refused to impose sanctions on these countries. See , President’s Message to Congress Transmitting a Report, Pub. Papers 265, 265-266 (Feb. 13, 1979).

Dissatisfied with the failure of the President to impose sanctions in the situations mentioned above, Congress was forced to reevaluate the effectiveness of the Pelly Amendment in regard to international whaling operations. Legislators pointed to the level of presidential discretion as the major deficiency of the Pelly Amendment and proposed to rectify this deficiency by allowing some form of sanction upon certification. Ruffle, Resurrecting the International Whaling Commission , 27 Brooklyn J. Int’l L. 639 (2002).

ii.  The Packwood-Magnuson Amendment

The Packwood-Magnuson Amendment to the Fishery Conservation and Management Act of 1976 was enacted to correct the deficiencies of the Pelly Amendment and impose automatic economic sanctions against countries not abiding by IWC regulations. Under the Packwood-Magnuson Amendment, the Secretary of Commerce is authorized to determine whether nationals of a foreign country are engaged in operations that diminish the effectiveness of the IWC by direct or indirect means. A positive finding by the Secretary of Commerce is deemed a certification under the Pelly Amendment. However, in addition to the President's receipt of notice of certification, the Packwood-Magnuson Amendment directs the Secretary of State to reduce by 50% the certified country's fishery allocation in United States waters. 16 U.S.C. § 1801 .

iii.  Japan Whaling Ass’n v. American Cetacean Society

The United States Supreme Court had an opportunity to interpret the Packwood-Magnuson Amendment in Japan Whaling Ass'n v. American Cetacean Society , 478 U.S. 221 (1986). In a highly criticized opinion, the Supreme Court concluded that the decision to implement sanctions was voluntary and that the Secretary of Commerce was not required to certify countries who captured whales in excess of IWC quotas under the Packwood-Magnuson Amendment.

The decision afforded the U.S. time to negotiate with Japan. In a series of secret negotiations, Japan agreed to comply with the moratorium and avoid trade sanctions that might have cost the country hundreds of millions of dollars in damages. Subsequently, the decision in Japan Whaling Ass'n has been openly criticized by conservationists and legislators  for contradicting legislative intent and undermining international efforts to regulate whaling. Id .

iv. Failure of United States Amendments

Difficulty arises when an individual state attempts to enforce an international regulatory regime through domestic measures. In a few cases, threat of unilateral sanctions may result in a token effort toward correcting the offense. Threatened nations often respond with counter-threats that prevent countries such as the U.S. from imposing sanctions, especially where the trading relationship between the two nations is important for both economies.

The executive branch has indicated a concern that an embargo on fish would inevitably result in a retaliatory embargo on American fish exports. Not surprisingly, Japan has threatened to take such action as a leverage to forestall U.S. sanctions. Japan maintains even more leverage due to investments in joint venture fishing operations with American companies in the North Pacific. This is extremely significant since the United States alone has provided an enforcement mechanism for the IWC. Pro-whaling nations are prone to base their decisions on whether or not to observe IWC regulations on their assessment of United States intentions. Ruffle, Resurrecting the International Whaling Commission , 27 Brooklyn J. Int’l L. 639 (2002).

G. Hope for the Future

The Indian Ocean, parts of the Pacific Ocean off the Mexican coast, and most of the ocean waters of the Southern Hemisphere have been designated as whale sanctuaries by the IWC. The Indian Ocean was designated as a sanctuary for whales in 1979, and it was made permanent in 1992. Parts of the Pacific Ocean were designated whale sanctuaries in 1994. The Southern Hemisphere ocean sanctuary was approved in 1993. With these protective efforts, some species have begun to return to acceptable numbers, but others, especially the right and blue whales, are still rare and endangered. Only the small minke whale exists in populations great enough for sustainable whaling to be considered.

The United Nations Convention on the Law of the Sea presents the most hope for the future. Its provisions will help to strengthen the IWC.

i.  The United Nations Convention on the Law of the Sea (UNCLOS)

UNCLOS, the third conference on the law of the sea, did not create any specific provisions for the regulation of whaling. Two sections of the new treaty, however, will impact the IWC. First, the treaty establishes a two hundred mile exclusive economic zone (EEZ) extending from every coastal states' territorial baseline, and awards each coastal state the right to control the living resources within that zone. In the case of highly migratory species, the coastal state and other users of the resource must seek agreement on the management of that resource. Cetaceans were identified as a highly migratory species in Annex I of the treaty. Many coastal states have adopted national legislation creating EEZs. The EEZ concept has been accepted as customary international law. Anti-whaling states are able to prohibit the killing of whales by others within their EEZs. The United States, Australia, New Zealand, the United Kingdom, and Canada have already banned the taking of great whales in their waters. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 21 I.L.M. 1261 (entered into force Nov. 16, 1994).

Second, Article 65 places the obligation of marine mammal management with international institutions, and pronounces that all UNCLOS signatories have a duty to conserve these species. Coastal states do retain the freedom to prohibit, limit or regulate the exploitation of whales more strictly than the Convention provides. Article 120 applies Article 65 to the high seas as well as the coastal zone. Article 65 reads in full:

Nothing in this Part restricts the right of a coastal state or the competence of an international organization, as appropriate, to prohibit, limit, or regulate the exploitation of marine mammals, and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.

UNCLOS, at article 65.

Article 65 actually imposes two duties on signatory nations. First, states have a duty to conserve marine mammals. Second, states have a duty to work within international regimes for the conservation and management of these species. The second duty compels states to follow the IWC, as it currently is the only international regime for the management of whaling. Matanich, A Treaty Comes of Age for the Ancient Ones , 8 Int’l Legal Persp. 37 (1996).

ii.  UNCLOS - Strengthening the IWC

Article 65 imposes a duty to conserve cetaceans, and a duty to do so within an international organization. Thus, it operates as an incentive for pro-conservation states to join the IWC. Article 65 states that signatories have a legitimate reason for seeking to join the IWC, namely, the management and conservation of whales. Beyond that, the article affirmatively directs states to join organizations like the IWC. This in turn, bolsters the credibility of the IWC. Whaling states have protested that the IWC was formed by whaling states to promote whaling, and anti-whaling states have no basis for joining the organization. UNCLOS rejects this theory, by supporting the membership of all nations with an interest in cetaceans.

A weakness in the IWC's credibility is the fact that whaling states are killing whales in spite of the IWC moratorium, and Iceland has left the IWC altogether. Mitigating this fact is the UNCLOS requirement to work within the IWC to pursue the management, conservation and research of whales. Whether or not whaling states can legally object to the IWC's Schedule under the International Whaling Convention, UNCLOS superimposes an obligation on them to abide by amendments designed by the IWC to manage, conserve or study cetaceans.

UNCLOS rationally relates the moratorium to the conservation of whales. Because the membership of non-whaling states is supported in UNCLOS, their management interests, such as ensuring that humane methods of killing are developed before the moratorium is lifted, can be reflected in IWC scientific objectives. Japan, Iceland, and Norway, who claim the moratorium is not based on science, oppose only a decision which is based on a different concept of science, which is one supported by the UNCLOS community. Matanich, A Treaty Comes of Age for the Ancient Ones , 8 Int’l Legal Persp. 37 (1996).

iii. The Impact of UNCLOS

Norway, Iceland, and Japan are signatories to UNCLOS. Iceland has ratified the treaty, and thus, is bound by UNCLOS provisions, including Article 65. Japan has not yet ratified the treaty.

The impact of UNCLOS may still be lost on whaling states, who have been the subject of international pressure for some time. Moreover, the ambiguous terms of Article 65 may yet leave it open to attack. UNCLOS was drafted through a consensus-forming process that left it open to political manipulation.

Despite these limitations, UNCLOS will serve to increase the international pressure on whaling states to give up the practice. Article 65 has been interpreted as imposing a duty of preservation, and used it as political ammunition against whaling states. At the very least, UNCLOS is an official endorsement of the work of the IWC, reminding members to respect its authority. Matanich, A Treaty Comes of Age for the Ancient Ones , 8 Int’l Legal Persp. 37 (1996).

III.  Beyond the IWC - Federal Laws and Regulations

A. The Marine Mammal Protection Act

Under United States law, all species of whales are protected by two federal laws, the Marine Mammal Protection Act and the Endangered Species Act. In 1972, the United States Congress passed the Marine Mammal Protection Act (MMPA). The MMPA makes it illegal for any person under legal jurisdiction of the United States to kill, hunt, injure or harass all species of marine mammals, regardless of their population status. In addition, the MMPA also makes it illegal for anyone to import marine mammals or products made from them into the United States. The Marine mammals protected under the MMPA are dolphins, whales, seals, sea lions, sea otters, polar bears, manatees, dugongs and walruses. The MMPA is perhaps the most comprehensive piece of marine mammal conservation and management legislation in the world.

The pertinent parts of the MMPA as it applies to whales are as follows:

1. certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man’s activities;
2. such 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, and, consistent with the major objective, they should not be permitted to diminish below their optimum sustainable population. Further measures should be immediately taken to replenish any species or population stock, which has already diminished below that population. In particular, efforts should be made to protect essential habitats, including the rookeries, mating grounds, and areas of similar significance for each species of marine mammal from the adverse effect of man’s actions. there is inadequate knowledge of the ecology and population dynamics of such marine mammals and of the factors of which bear upon their ability to reproduce themselves successfully; and
3. marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic.

16 U.S.C. § 1361 (2002)

i. Selected Definitions under the MMPA

The terms "take" and "harassment" are crucial to the Act. The terms relate to case law discussed later in this section.

Take

The term "take" is statutorily defined to mean "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture or kill any marine mammal."  16 U.S.C. § 1362

Harassment

Under the 1994 amendments, Congress statutorily defined and divided the term "harassment" to mean any act of pursuit, torment, or annoyance which --

1. Level A Harassment - has the potential to injure a marine mammal or marine mammal stock in the wild; or 
2. Level B Harassment - has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption or behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.

16 U.S.C. § 1362

ii.  Duties of the NMFS

Under the MMPA, the Secretary of Commerce is responsible for the conservation and management of whales and other cetaceans. The Secretary of Commerce delegated MMPA authority to National Marine Fisheries Services (NMFS). Part of the responsibility that NMFS has under the MMPA involves monitoring populations of marine mammals to make sure that they stay at optimum levels. If a population falls below its optimum level, it is designated as "depleted," and a conservation plan is developed to guide research and management actions to restore the population to healthy levels.  Source: National Marine Fisheries Service

a. "Depleted" Marine Mammals

Under the Marine Mammal Protection Act (MMPA), a species is designated as depleted when it falls below its optimum sustainable population. The MMPA defines optimum sustainable population (OSP) as the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the optimum carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element. NMFS regulations have further defined optimum sustainable population as a population size which falls within a range from the carrying capacity of the ecosystem to the population level that results in maximum net productivity. Once a species have been designated as depleted, a conservation plan is developed to guide research and management actions to restore the health of the species. The Cook Inlet Beluga Whale species has been designated as depleted under the MMPA.

b. Candidate Marine Mammals

NMFS's regulations define a candidate species as any species being considered by the Secretary for listing as an endangered or threatened species, but not yet the subject of a proposed rule. The agency conducts a review of the status of each candidate species to determine if it warrants listing as an endangered or threatened species under the Endangered Species Act (ESA). The Cook Inlet Beluga Whale species is currently considered candidate species.

c. Recovered and Extinct Marine Mammals

A species is considered recovered under the ESA when it is no longer requires protection under the Act and thus is de-listed.  In practice, a species or stock is widely regarded as recovered only once it is de-listed both under the ESA and the MMPA (i.e. it is no longer depleted). Currently, only the Eastern Pacific Gray Whale species is considered recovered. No whales are known to have become extinct since the passages of the MMPA and ESA.

iii. The Moratorium and its Exceptions

The MMPA establishes a moratorium on the taking and importation of marine mammals and marine mammal products. The Secretary may issue permits for the following:

1. taking and importation for scientific research,
2. public display,
3. photography for educational or commercial use,
4. enhancing the survival or recovery of a species.

incidental to commercial fishing operations subsistence use by natives of the North Pacific and Arctic coasts.

16. U.S.C. § 1371

Permit applications must first be reviewed by the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals. The Secretary can waive these requirements and allow taking and importing in accordance with the purposes and policies of the Act, if the Secretary certifies that the marine mammals were taken in their country of origin in a manner consistent with this Act. With limited exceptions, no permits may be issued for the taking or importation of a marine mammal designated as depleted.

a.  Scientific Research Exception

The Secretary must determine that the taking is required to further a bona fide scientific purpose and does not involve unnecessary duplication of research. More stringent requirements, however, must be satisfied before the Secretary can issue a permit for scientific research which results in the killing of a marine mammal. The Secretary of the Department of Commerce may not issue a permit for the killing of a marine mammal until they have verified the following:

(1) a non-lethal method of conducting the research is not available; and

(2) if the marine mammal is a member of a depleted species, the research findings will directly help the species or the research is extremely important.

b.  Public Display Exception

No permits to capture wild marine mammals for purposes of public display have been issued since 1989. Jones v. Gordon and Animal Protection Institute of America v. Mosbacher address this exception.

bi.  Jones v. Gordon

In Jones v. Gordon , 792 F.2d 821 (9th Cir. 1986), an aquatic zoological park operator applied to National Marine Fisheries Service for a permit to capture killer whales for scientific research and public display, which was allowed by the MMPA. A permit was issued and tour boat operators and environmental organizations filed an action for declaratory and injunctive relief, claiming that it violated the National Environmental Policy Act of 1969 (NEPA) by issuing the permit without preparing an environmental impact statement. The district court granted summary judgment in favor of the tour boat operators and environmental organizations, declared the permit void, and enjoined the park operator from capturing killer whales. The park operator challenged the judgment, contending that the issuance of the permit did not require preparation of an environmental impact statement. The court affirmed the district court’s finding that the decision of NMFS not to prepare a statement was unreasonable. However, the court held that preparation of such a statement was not required but that NMFS was required to consider the NEPA and regulations and provide a reasonable explanation for its decision. Id .

bii.  Animal Protection Institute of America v. Mosbacher

In Animal Protection Institute of America v. Mosbacher , 799 F. Supp. 173 (D.C. 1992), the Secretary of Commerce granted an aquarium permit for the importation of two types of whales from Japan for display at the aquarium’s place of business. The agencies had standing to seek invalidation of the permits because their injuries were imminent, as their members had plans to visit the particular areas for whale watching "soon" and a decision granting the requested relief would prevent the injury from occurring; however, the court denied their request for summary judgment. The Secretary’s actions were in accordance with the law because the Secretary had authority to issue the permits under the MMPA and the Secretary’s actions were not arbitrary or capricious. With respect to the permit for one type of whale, only whales that were already in captivity would be imported; thus, their removal would not affect the wild population. Such whales were neither "threatened" nor "endangered" under the ESA nor had they been declared "depleted under the MMPA. Similarly, the other type of whale was to be taken from water in which studies had revealed that there was an abundant supply. Id .

biii.  Animal Protection Institute of America v. Mosbacher - A Side Note

Critics of the Mosbacher opinion content that one basis of the plaintiffs' complaint should not have been so easily dismissed. Section 1371(a)(3)(A) of the MMPA requires the Secretary of Commerce, before the issuance of a permit for the importation of a marine mammal, to certify that the country from which the animals are being imported has established a marine mammal conservation and preservation program that is consistent with the policies of the MMPA. Subsequently, this provision appears to prohibit absolutely the importation of marine mammals or marine mammal products from any nation that does not have this type of conservation program. According to the plaintiffs in Mosbacher, the defendants failed to satisfy the requirements of section 1371(a)(3)(A) because Japan does not have a conservation program that is consistent with the policies and purposes of the MMPA; therefore, the permit should be invalidated.

The requirements of section 1371(a)(3)(A) are not considered to be legally binding when making a decision as to whether to grant permits for the importation of marine mammals for public display. In fact, the requirements are considered to be "an independently created exception to the moratorium rather than a waiver."

Dye, The Marine Mammal Protection Act , 43 Case W. Res. 1411 (1993). 

c.  The Public Display Exception Controversy

The concerns of animal rights activists raise the issue of whether the holding of marine mammals in captivity for public display purposes is justifiable. Several issues are often addressed.

ci. Does Captivity Shorten the Life Span of Marine Mammals?

1) Argument

Much of the debate over whether marine life facilities should be barred from maintaining public displays of marine mammals focuses on empirical data which attempts to measure the effects of captivity on the longevity of the animals being kept therein. One of the most prominent criticisms from animal rights groups is that the life span of marine mammals is shorter in captivity than it is in the wild. For example, animal rights activists rely on a 1981 study which concluded that while the approximate longevity of adult male and female killer whales was 48 and 80 years respectively, these animals only survive, on the average, approximately 2.8 years in captivity. Due to this alleged shortening of life span for captive marine mammals, animal rights groups contend that the issuance of public display permits is inconsistent with the conservation policies of the MMPA.

Winters, Comment, Cetacean Rights Under Human Laws, 21 San Diego L. Rev. 911, 920 n.67 (1984) (citing Hearings Before National Marine Fisheries Service (NOAA), Seattle Public Hearings 35, 43 (Aug. 1983) (conducted through the Canadian Department of Fisheries and Oceans, this study examined the life span of 61 killer whales that were collected between 1963 and 1983)). Id. at 920. See also Jones v. Gordon, 792 F.2d 821, 821 (9th Cir. 1986)(shorter life span of captive mammals was one of the arguments used to obtain an injunction against Sea World's acquisition of these killer whales under a permit that was granted by the National Marine Fisheries Service without the preparation of an environmental impact statement). Target: Dolphin Captivity Part II, THE ANIMAL RIGHTS REPORTER, Jan. 1, 1991, at 6-7.

2) Counter-argument

Spokespeople for marine life parks assert that critics are misinformed about the life expectancy of marine mammals in the wild. According to Sea World, Inc., the approximate longevity of a killer whale in the wild is 25-35 years, not 48 or 80 years as argued by animal rights groups. In addition, Sea World maintains that the first year survival rate of the dolphins born within its breeding program is higher than the first year survival rate of dolphins born in the wild. It is interesting to note that in responding to this argument, Sea World used the survival rate of dolphins, rather than the survival rate of whales.

The argument of marine life parks is bolstered further by a 1988 study which concluded that no significant difference exists between the survivorship rates of bottlenose dolphins, beluga whales, and killer whales in captivity and the survivorship rates of those mammals in the wild. The results are even more persuasive when it is noted that the scientist who conducted this study was commissioned by animal rights groups, not by marine life facilities. The results provide support for the proposition that the death of an animal in captivity is not necessarily the result of the animal being kept in a captive environment. Instead, the death is simply a natural part of the animal's life.

cii. Do Captive Marine Mammals Receive Adequate Treatment?

1) Argument

Animal rights groups contend that captive marine mammals are kept in unsatisfactory environments and receive inadequate treatment. Critics argue that high chlorine levels, concrete walls, crowded conditions, and the lack of rules governing public interaction with the animals in these facilities creates a harmful and abusive environment for the animals.

2) Counter-argument

Marine life facilities vehemently deny that captive marine mammals are kept in unsatisfactory environments or receive inadequate treatment. Spokespeople for large oceanariums maintain that the animals under their care enjoy a healthy life with clean food, veterinary care, and freedom from predators and diseases caused by pollution. These facilities often exceed the pool size requirements mandated by the federal government and utilize modern filtration systems to maintain excellent water quality.

ciii. Does the Capture of Marine Mammals Harm the Remaining Population?

1) Argument

Animal rights activists also assert that the process of capturing marine mammals is not only dangerous to the animals being caught, but also to the species' population sizes and their remaining social structure. Critics accuse collection teams of capturing the strongest and healthiest members of a marine mammal population and leaving the weaker ones behind to fend for themselves.

2) Counter-argument

Marine life parks maintain that the capturing process is not harmful to the animals being caught or to the species' population sizes. Marine life parks are required to follow the methods of capture prescribed by the federal government and to prepare a report describing all of the activities engaged in pursuant to the permit.

3) MMPA Restrictions on Importation

In order to protect the remaining marine mammal populations, Congress imposed several restrictions on the types of marine mammals which may be imported into the United States:

It is unlawful to import into the United States any marine mammal if such mammal was:

1. pregnant at the time of taking;
2. nursing at the time of taking, or less than eight months old, whichever occurs later;
3. taken from a species or population stock . . . designated as a depleted species or stock; or
4. taken in a manner deemed inhumane by the Secretary.

16 U.S.C. §§ 1372, 1373

civ. Is it Moral to Hold Marine Mammals in Captivity?

1) Argument

The most difficult issue raised by animal rights groups is whether it is ethical or moral to hold marine mammals in captivity. Animal rights activists maintain that instead of teaching conservation and preservation, marine life parks and aquariums only send the message that animals are here on Earth for humanity's entertainment, exploitation, and capitalistic ventures. Animal rights advocates also argue that marine life parks do not present to the public an accurate representation of the behavior of marine mammals in the wild. Relying on these arguments, many animal rights groups declare that it is unethical and immoral to hold marine mammals in captivity for any reason.

2) Counter-argument

Marine life facilities deny that it is unethical and immoral to keep marine mammals in captivity, maintaining adamantly that these exhibits are needed to promote conservation and preservation through public education. Marine life facilities criticize some animal rights groups' premise that "all capitalist ventures are intrinsically evil or anti-environmental." Marine life facilities argue that "if environmentalists as a group could learn to accept the profit motive, perhaps it could be used as a tool to encourage sound environmental practices designed to be profitable. Dye, The Marine Mammal Protection Act , 43 Case W. Res. 1411 (1993).

d. Enhancing the Survival or Recovery of a Species

If the purpose of the permit is to aid the survival of a species or stock, the Secretary first must consult with the Marine Mammal Commission and hold a public hearing in order to determine whether the taking or importation would aid significantly the maintenance and increasing distribution that is needed to facilitate the survival or recovery of the species. The Secretary must also verify that any taking or importation is consistent with an established conservation plan or with the Secretary's determination of what is needed to ensure the survival or recovery of a species or stock. Furthermore, a permit for the captive holding of a marine mammal that belongs to a depleted species or stock cannot be issued until all of the following conditions are met:

1. the Secretary determines that the "captive maintenance is likely to contribute to the survival or recovery of the species or stock by maintaining a viable gene pool, increasing productivity, providing biological information, or establishing animal reserves;"
2. the Secretary verifies that "the expected benefit to the affected species or stock outweighs the expected benefit of alternatives which do not require removal of animals from the wild;" and
3. the Secretary "requires that the marine mammal or its progeny be returned to the natural habitat of the species or stock as soon as feasible, consistent with the objectives of any applicable conservation plan or recovery plan . . ."

16 U.S.C. §§ 1373, 1374

e. Takings incidental to Commercial Fishing Operations

In 1988, incidental taking of marine mammals in commercial fishing operations was addressed when it became apparent that NMFS was unable to undertake the necessary determinations to authorize takes for affected marine mammal stocks. In Kokechik Fishermen’s Association v. Secretary of Commerce , 839 F.2d 795 (D.C. 1988), the court held that the permit system was inherently flawed because there was insufficient information to determine with any degree of certainty that incidental takes would not harm marine mammal stocks. See Also , Strahan v. Linnon , 1998 U.S. App. LEXIS 16314 (1998) (Coast Guards striking of whales constituted takings in violation of the ESA and MMPA), Strahan v. Coxe , 127 F.3d 155 (1st Cir. 1997) (Court ruled that commercial fishing regulations exacted a taking under the ESA).  Young, The Conservation of Marine Mammals Using a Multi-Party Approach , 6 Ocean & Coastal L.J. 293 (2001).

Incidental taking in commercial fishing operations is allowable either by permit or authorization by the Secretary. The immediate goal is the reduction of incidental kill or incidental serious injury of marine mammals in commercial fishing to insignificant levels approaching a zero mortality and serious injury rate. The Secretary may allow incidental taking of depleted marine mammals during commercial fishing, if the impact is negligible, a recovery plan is developed and a monitoring program is established.

f. Subsistence Whaling Exemption

The MMPA does not apply to the taking of marine mammals by an Indian, Aleut or Eskimo who resides in Alaska and dwells on the coast of the North Pacific Ocean or the Arctic Ocean, if the taking is done in a nonwasteful manner and is for subsistence purposes or for creating and selling authentic native handicrafts and clothing. These takings may be regulated by the Secretary, however, if the marine mammal is depleted.

g. What Constitutes a Taking? United States v. Hayashi

As mentioned above, the term "take" is crucial to the Act. In United States v. Hayashi , 22 F.3d 859 (9th Cir. 1993), the Ninth Circuit was asked to determine whether the defendant's act of intentionally shooting in the vicinity of porpoises in an attempt to deter them from eating fish off of his fishing line fell within the MMPA's proscription against the "taking" of marine mammals. The Ninth Circuit held that the district court had committed two errors. First, the actus reus, or criminal act itself, was improperly defined because the court had relied upon an improper statute to formulate its definition of "take" under the act. Second, the mens rea, or the mental element for the crime charged, was not properly limited to conduct which was knowing and intentional. After setting forth and explaining the errors below, the court went on to determine that there was insufficient evidence to convict Hayashi of "knowingly taking" a marine mammal in violation of the MMPA. Thus, the Ninth Circuit reversed Hayashi's conviction.

In its analysis, the court fist looked to the statute under which Hayashi had been charged, the MMPA, to correctly define actus reas. This MMPA prohibits the "taking" of a marine mammal in United States waters. Noting that the MMPA defines "take" as "to harass, hunt, capture, or kill or attempt to harass, hunt, capture, or kill," the court determined that only the terms "harass" and "attempt to harass" were potentially applicable to Hayashi's conduct. At the time Hayashi committed the act of firing at the porpoises, the term "harass" was not further defined within the MMPA or its companion administrative regulations. Nevertheless, regulations issued under the Endangered Species Act defining "take" with regard to porpoises were available and utilized by the Ninth Circuit. These regulations state that the intentional or negligent "disturbing" or "molesting" of a marine mammal constitutes a "take." However, the Ninth Circuit Court found these examples of "taking" to be equally vague, and determined that a clearer definition of "taking" by "harassment" was to be ascertained by referring to the context of the statute. Id .

The term "harass," the court noted, is grouped with "hunt," "capture," and "kill" as forms of prohibited "taking." Relying on the principle that words which are grouped together in a list should be given similar meaning, the court determined that each of these terms "involved direct and significant intrusions upon the normal, life-sustaining activities of a marine mammal." Id . at 864. Therefore, the Ninth Circuit concluded that similar to those terms, "harass" must involve a similar level of intrusion.

As additional support for this conclusion, the court next looked to the Endangered Species Act (ESA),a statute distinct and separate from the MMPA, whose regulations could nevertheless prove to be useful as analogous authority to aid in interpreting the terms from the MMPA.

Section 17.3 of the ESA defines "harassment" which constitutes a "taking" to require a significant disruption of "normal behavioral patterns" including breeding, feeding or sheltering. The court noted that this definition emphasized protecting "natural" animal behavior, not abnormal marine mammal activity. This definition, the court held, was consistent with the essence of the MMPA which strove to preserve marine mammals as essential components of the "natural" marine ecosystem. The court found that section 17.3 did not support an interpretation of "harassment" which prohibits disturbing marine mammals who are endangering human life or property. Thus the interpretation of "harass" propounded by the court would look at the act of the alleged harasser and also consider the act in which the marine mammal was engaged. A "taking" by "harassment," according to the majority of the Ninth Circuit, encompassed "only direct and serious disruptions of normal mammal behavior." Id . at 865.

The Ninth Circuit's definition of the actus reus limited criminal conduct to "direct and serious disruptions of normal mammal behavior." Id . at 865. In reviewing the conduct of Hayashi, the court bifurcated its analysis, looking first at whether the mammals at issue had been disrupted from "normal" behavior, and subsequently at the reasonableness of Hayashi's conduct. Id .

1) The Requirement that "Normal" Behavior Patterns Be Disrupted

At the moment Hayashi fired shots at the porpoises, the animals were eating bait and hooked fish from his fishing lines. Eating fish and bait off a fisherman's lines, the majority asserted, was "not a part of the porpoise's normal eating habits." Furthermore, no evidence was presented establishing that the animals had in fact been deterred from the lines or even reacted to Hayashi's shots. Thus, the Ninth Circuit concluded that the evidence failed to establish that Hayashi's shots had deterred the porpoises from "normal" behavior patterns

2) The Requirement of a "Direct and Serious" Disruption

With regard to the requirement that the defendant's conduct result in a direct and serious disruption, the court summarily stated that "Hayashi's conduct was not the kind of direct, serious disruption of a porpoise's customary pursuits required to find a criminal 'taking.' Id . at 865. Reasonable acts to deter porpoises from eating fish or bait off a fisherman's line are not criminal under the MMPA."

Thus, having found that there was no "direct and serious disruption of normal mammal behavior," the Ninth Circuit concluded that the MMPA and the regulations implementing the Act failed to reach Hayashi's conduct.

3)  Squaring the Court's Interpretation with Subsequent Regulations Proscribing the Feeding of Marine Mammals

Subsequent to the incident for which Hayashi was prosecuted, the NMFS promulgated regulations adding "feeding or attempting to feed" to the definition of "harass" found in the ESA. This amendment to the definition of "harass" addressed concerns that people feeding marine mammals disrupts their natural feeding patterns, potentially conditioning them to approach watercraft, and thereby increasing the likelihood "that they will become entangled in fishing gear, be struck by vessels, or be shot, poisoned, or fed foreign objects." Id . at 866. The court determined that this amendment deterred precisely that behavior which Hayashi had himself deterred by firing the rifle shots. The court concluded that were it to hold that Hayashi's behavior constituted "harassment," then under the new regulations, a fisherman would be guilty of "harassment" by "feeding" if he did not deter a marine mammal from feeding off of his fishing lines. But at the same time, a fisherman would be guilty of "harassment" by "disturbing" if he took steps to deter such acts. For these reasons, the court concluded, the new regulation supported their definition of "harass" as well as their interpretation that the MMPA did not reach Hayashi's conduct.

Some critics of this opinion claim the court erred by narrowly defining "harassment" under the MMPA to include only those acts which directly and seriously disrupt normal marine mammal behavior. Fisher & Bell, Did United States v. Hayashi Fail to Provide a Safe Harbor for Marine Mammals Under the Marine Mammal Protection Act? , 27 Golden Gate U.L. Rev. 67 (1997). By defining "harassment" so narrowly, it does appear that the court is only including direct and seriously disrupting behavior.

h. 1994 Amendments to MMPA- Effect on Whales

Since the 1994 Amendments became law, NMFS has published several regulations to implement requirements under the Act. These include the general authorization for scientific research, the new management regime for governing the incidental taking of marine mammals in commercial fisheries, the prohibition on intentional lethal take in commercial fishing, the prohibition on approach closer than 100 yards to humpback whales in Hawaii, and consolidation of regulations for special exception permits to take, import, export, or carry out any other otherwise prohibited act involving marine mammals for the purpose of scientific research or enhancement for the survival or recovery of a species or stock.

i.  Penalties for MMPA Violations

Violation of the MMPA is subject to a civil penalty of up to $10,000 per violation. Each unlawful taking or importation is a separate offense. Knowing violation of the MMPA is subject to a criminal penalty of up to $20,000 per violation or imprisonment for one year, or both. A vessel subject to the United States jurisdiction used in the unlawful taking of a marine mammal is subject to seizure and forfeiture of its cargo, and liable for a civil penalty of up to $25,000.  16 U.S.C. § 1375

j.  Marine Mammal Health and Stranding Response Act

In 1992, The Marine Mammal Health and Stranding Response Act, 16 U.S.C. § 1421 , was added to require the Secretary to mandate the creation of a standing network. The MMPA defines a stranding as one or more of the following occurrences:

• Any dead marine mammal on the shore or in the water;
• A live marine mammal that is on the shore and unable to return to the water;
• A live marine mammal that is on the shore and in need of medical attention;
• A live marine mammal that is in the water but is unable to return to its natural habitat under its own power or without assistance.

16 U.S.C. § 1421

Who responds to a stranded marine mammal is determined by the location of the animal and who is qualified to address the needs of that species. Since whales are a commonly stranded marine mammal, the stranding response directly relates to them.

k. International Policies

The policies embodies in the MMPA serve as the official policies of the United States in the negotiation if international agreements concerning marine mammals (such as CITES and the IWC).

B. The Endangered Species Act - Intersection Between MMPA and ESA

The Endangered Species Act was passed by the United States government in 1973. The Act protects both endangered and threatened species. Endangered species are defined as those in danger of extinction throughout all or a significant portion of their range. Threatened species are those likely to become endangered within the foreseeable future. The National Marine Fisheries Service (NMFS) of the Commerce Department is responsible for enforcing the ESA as it applies to marine animals.

Once an endangered or threatened species of whale is added to the list, it enjoys legal protection designed to help it recover. For all whale species listed as endangered, it is illegal to kill, hunt, collect, injure, or harass them, or to destruct their habitat in any way. It is also illegal to buy or sell any species listed as endangered. If a whale species is listed as threatened, it often has the same level of protection. Critical habitat is designated to assure the survival or recovery of the endangered and threatened whale species. A recovery plan is prepared by the National Marine Fisheries Service to restore the species to a point where it can be removed form the list.

Domestic endangered whale species are: Blue whale, Bowhead whale, Humpback whale, Northern right whale, Sei whale, and Sperm whale. The International Species Listed as Endangered or threatened under the ESA are the Gray whale, Western North Pacific population and the Southern right whale.

Section 9 of the ESA prohibits the taking of endangered species. "Taking" is broadly defined and includes killing, wounding, pursuing, harassing or harming.. This section applies to the taking of whales, but the MMPA, which also includes a "takings" clause, is primarily used in cases involving takings of whales rather than the ESA because of its specificity towards whales.

C. International Protection- Intersection Between MMPA and CITES

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international agreement between governments. It was drafted in 1973 and currently has 152 parties. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. Becoming a party to CITES means that the countries have signed the treaty and have agreed to implement it in territories under their jurisdiction.

The structure of CITES lists species are listed in appendices according to their conservation status. Appendix 1 species are species in danger of extinction, for which all commercial trade is prohibited. All great whales are listed under Appendix 1.

The focus on marine species has increased in recent years at CITES meetings. Recently, there has been an enormous increase in the discussion of issues relating to reopening trade in whales. These proposals have been defeated.

IV. Past Whaling - Additional Threats and Protective Measures

A.  Fishing Nets

More whales, dolphins and porpoises die every year by getting entangled in fishing gear than from any other threat. When these animals get entangled, small whales, dolphins and porpoises often drown because they generally are not strong enough to break free and come to the surface to breathe. Large whales usually do not drown, but heavy fishing gear can stay attached to them for a long time. This extra weight can wear them out, and fishing line wrapped tightly around them can cause serious injuries. Several species and many populations will be lost in the next few decades if nothing is done about entanglement in fishing nets. The best available data suggests that more than 80,000 small cetaceans drown in gillnets annually, and this figure is undoubtedly a gross underestimate. See www.worldwildlife.org .

i. Driftnet Ban

Driftnets are huge nets made of lightweight nylon, which measure up to 90 miles in length and 15 feet in depth. They are left to "drift" in the open ocean for periods of eight hours or more. Driftnets were designed as an effective mechanism for catching tuna and squid, but they tend to entrap anything larger than their mesh size, this includes whales. Whales become entangled in the driftnets and are not able to free themselves, as a result they drown.

Driftnets are not biodegradable and are acoustically and visually "invisible" to marine mammals and nearly unbreakable. Even when they are no longer used in active fishing operations, they can cause adverse indirect impacts when entire nets or fragments are lost and continue to entrap and kill marine creatures. United States government personnel in surveillance aircraft have observed the abandonment of entire pelagic driftnets by fleeing vessels that had been fishing illegally in restricted or prohibited waters. The nets are left to fish relentlessly. See Eisenbud, Problems and Prospects for the Pelagic Driftnet , 12 B.C. Envtl. Aff. L. Rev. 473 (1985).

In 1991, the United Nations passed a resolution establishing an international moratorium on high seas driftnet fishing. The moratorium makes it unlawful to set driftnets anywhere on the high seas. Before the moratorium was implemented, Japanese, Taiwanese, and Korean fisherman fished with pelagic driftnets relentlessly. Reliable estimates of incidental mortality are unavailable for the overwhelming majority of vessels engaged in the pelagic driftnet fisheries. While the moratorium does help to eliminate driftnet fishing, establishing an observation system to monitor high seas driftnet activity is quite difficult.

ii. Coastal Gill Nets

Gill nets are much smaller in size in comparison to drift nets. They can be either anchored on the seabed or allowed to drift. But, they are just as devastating to whales. Whales that live close to shore are the most at risk.

Gillnets have been used for centuries and need not be any more destructive than any other fishing techniques if they are used selectively and in moderation. Adverse impacts can be minimized by effective regulatory measures such as mesh size and overall lengths of nets, as well as the season and area of use. Regular monitoring of the fishery can detect problems and provide a basis for the development of necessary remedial measures. See Eisenbud, Problems and Prospects for the Pelagic Driftnet , 12 B.C. Envtl. Aff. L. Rev. 473 (1985). 

In the United States, gill nets are primarily used by fisherman in Hawaii. In 1993, gill net regulation laws went into effect in Hawaii. The laws make it unlawful for any person fishing with a gill net to leave the net unattended for more than two hours without visually inspecting the net and releasing undersized, illegal or unwanted catch. It is also illegal to leave any gill net in the water for a period of more than four hours in a twenty-four hour period.  Source: National Marine Fisheries Service

iii.  MMPA Exemption

Incidental taking during commercial fisheries is an exemption of the MMPA. The Secretary must grant authorizations for incidental taking of marine mammals to commercial fisheries, which must follow specified requirements for displaying a decal, reporting incidental taking, complying with take reduction plans and emergency regulations, and allowing an observer on board the vessel.

16 U.S.C. § 1387 .

B. Environmental Change

While fishing net entrapment is of great concern for the future of whales, environmental factors due to human influence are rapidly becoming another concern to whales. As identified by the IWC’s Scientific Committee, the term "environmental change" encompasses the following: climate change, chemical pollution, physical and biological habitat degradation, effects of fisheries, ozone depletion and UV-B radiation, Arctic issues, disease and mortality events, and the impact of noise. 50th Meeting of the IWC, Resolution on Environmental Change and Cetaceans , IWC Resolution 1998-6 (1998).

i.  Climate Change

As the evidence accumulates that global climate change is causing severe perturbations in ocean currents, whales, like other marine species, are likely to be affected. Global warming is already causing polar ice to melt. This could destabilize the ecology of the Arctic and Antarctic feeding grounds of many large whales and acutely jeopardize the bowhead, narwhal, and beluga, which live in Arctic waters year-round.

Research suggests that a diminution in sea ice may lead to the following consequences. First, diminution in sea ice may lead to a decline in the productivity of algae, the primary source of food for krill during the winter. Second, a reduction in sea ice could deny krill larvae critical protection from predators. Third, cetacean species that migrate long distances might have to alter the timing and order of migration to follow the ice front, adversely affecting their biology. Fourth, sea ice decline could result in the proliferation of the pelagic tunicate salps, one of the most abundant macro zooplankton species in the ice-free and seasonal pack-ice zone of the Southern Ocean. Salps persist in low numbers under sub-optimal conditions, but can rapidly proliferate when sea ice recedes and phytoplankton becomes more readily available during early spring. This could prove disastrous for krill populations. Salps could act as strong competitors of krill for food prior to the onset of phytoplankton blooms in the spring. This increased competition for food can stunt krill gonadal development, resulting in a reduction in recruitment the following year. Moreover, dense salp blooms can interfere with krill reproduction and kill off their larvae. See ; World Wide Fund for Nature, Climate Change: Parks at Risk , at http://www.panda.org/climate/parks/dr_I_park9.htm (last visited Nov. 26, 2000); Thomas Karl, The Arctic and the Antarctic, in IPCC, The Regional Impacts of Climate Change: An Assessment of Vulnerability (1997), at 98; Charles Arthur, Global Warming Poses a New Threat to Whales Survival , Independent, June 26, 1997, at 3; K.H. Kock & V. Siegel, IWC, Temporal Variations in Sea Ice Dynamics and Krill Abundance in the Antarctic Peninsula Region—Implications for the Krill-Dominated Food Web 3 (1996) ; V. Siegel & V. Loeb, Recruitment of Antarctic Krill "Euphausia superba" and Possible Causes for its Variability , 123 Mar. Eco. Progress. Ser. 45, 54 (1995).

Overall, a dramatic decrease in krill could be catastrophic; especially for the endangered blue whale. There is evidence that krill is already in short supply at least in part of the Southern Ocean.

Projected reductions in sea ice area could also open up the Northwest Passage. This could expose cetaceans to increased ship traffic and dangers associated with mineral exploitation, as well as by catch threats should new fishing areas appear in the region.

In other regions of the world, global warming may alter ocean upwelling patterns, fostering increased blooms of dinoflagellates. Dinoflagellate blooms have been associated with the deaths of marine species throughout the world, including cetaceans in the Mediterranean. See Burns, From the Harpoon to the Heat , 13 Geo. Int’l Envtl. L. Rev. 335 (2001), See also www.worldwildlife.org

a. The IWC’s Response to Climate Change

In 1996, the Scientific Committee of the IWC convened a workshop on climate change and cetaceans. While observing that assessment of the possible impacts of climate change on cetaceans was "severely limited" by the limitations of climate models, the workshop concluded that "concerns about the ability of at least some cetacean populations to adapt to future conditions are justified." International Whaling Commission, Report of the IWC Workshop on Climate Change and Cetaceans 2 (1996), at 22. It called on the IWC to encourage its members to join international efforts to reduce greenhouse gas emissions. The IWC set up a permanent working group on the effect of environmental change on cetaceans. See Burns, From the Harpoon to the Heat , 13 Geo. Int’l Envtl. L. Rev. 335 (2001).

ii. Chemical Pollution

Whale populations are coming under increasing stress from pollution, specifically polycholorinated biphenyl (PCB) contamination. PCBs are man-made chemicals used in the production of plastics and styrofoams, which are common components of beach trash. There is growing evidence that even extremely low levels of persistent organic chemicals, such as PCB's are increasing susceptibility to disease and decreasing fertility by interfering with the hormonal systems of whales.

Research indicates that some whales have detectable and sometimes extraordinarily high levels of contaminates. Biologists have reported a range of effects of these chemicals on whales, including immunosuppression, cancer, skin lesions, secondary infections and diseases, sporadic die-offs, and reduced reproductive success.

Mass die offs of whales is though to be related to PCBS. An increasing number of Beluga whale deaths have been associated with PCBs. In some instances, the concentration of PCBs found in the tissue of Beluga whales is so high that their corpses are considered to be hazardous waste and must be handled as such. Accumulation of PCBs in the tissue of whales is also thought to alter their physiology, which in turn may impact their ability to reproduce. In addition, mass die-offs of humpback whales in the western North Atlantic in 1994 has been linked to PCBs. Scientists have linked immune system function and greater susceptibility to viruses to high levels of PCB’s found in these dead whales. See, www.worldwildlife.org .

Scientists have found that the status of contamination of the marine environment by pollution has reached crisis level. Cetaceans are among the most vulnerable of all organisms to the long-term effects of these chemicals. Cetaceans have large fatty reserves in proportion to their body size that are ideal repositories for high concentrations of chemicals. Their fetuses and nursing calves are exposed to pollutants during critical periods of growth when endocrine, immune and nervous systems are developing. There can be substantial transfer of contaminants via the fat rich milk from nursing mothers.

Until recently it was though that the baleen whales were not so much at risk from pollutants as the toothed whales since they feed on species at the top of a much shorter food chain. However, the most recent research suggests that baleen whales are also affected. If these alarming trends continue, it is possible that some apparently stable populations could suddenly crash with very little warning. More rigorous testing to identify and phase out dangerous chemicals, and the promotion of safer alternatives, are priorities for protecting cetaceans. See www.worldwildlife.org .

iii. Ozone Depletion and UV-B Radiation

Ozone depletion results from the production of CFC's and is also thought to be indirectly harmful to whales. Resultant ultra-violet B radiation (UV-B) is known to have effects on phytoplankton and krill, diet staples for many species of baleen whales. Specifically, reduction in phytoplankton and krill has been exacerbated by UV light due to the Antarctic ozone hole that now extends well over the ocean each spring.

iv.  The Impact of Noise

"Underwater noise pollution is like the death of a thousand cuts. Each sound in itself may not be a matter of critical concern, but taken all together, the noise from shipping, seismic surveys, and military activity is creating a totally different environment than existed even fifty years ago. That high level of noise is bound to have a hard, sweeping impact on life in the sea. Regulating these sound sources can be difficult, but one has to start somewhere." See McCarthy, International Regulation of Transboundary Pollutants , 6 Ocean & Coastal L.J. 257 (2001).

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) defines marine pollution as:

The introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effect as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for us of sea wather and reduction of amenities.

Id.   Because acoustic emission involve the introduction of energy into the marine environment and may involve deleterious effects to marine mammals, noise can clearly be considered pollution under UNCLOS.

Many whales depend on sound for navigation and communication, and all the toothed species use echolocation ("seeing" by sending out sounds and receiving echoes from the objects around) to find their food. If the underwater noise levels from vessel traffic and industrial activity are too intense, these abilities may be seriously affected.

The threats to marine life from loud underwater sounds are serious. There is concern that powerful sound can cause tissue in the lungs, ears, or other body parts to rupture or hemorrhage. For example, in 1992, humpback whales off Newfoundland, Canada, were found with damaged ear structures after underwater blasting was used in constructing oil installations. Further away, the same sound could induce hearing loss, either temporary or permanent. Sound can also interfere with marine mammals’ ability to detect call from conspecifics, echolocation pulses, and other important natural sounds. This covering up of one sound by another is potentially the most serious effect of low-level sound. Office of Protected Resources, Nat’l Oceanic and Atmospheric Admin, The Effects of Manmade Noise on Marine Mammals, Marine Mammal Protection Act Bull. 2nd/3rd Quarter 200, at 9.

Additionally, noise can affect marine mammal behavior. Whales reactions to sound can range from a brief interruption of normal activities, such as feeding, to short or long-term displacement form noisy areas. A recent study found that man- made noise may interfere with breeding humpback whales by forcing them to increase the length of their mating songs when exposed to low-frequency sonar. See McCarthy, International Regulation of Transboundary Pollutants , 6 Ocean & Coastal L.J. 257 (2001).

The United States use of Low Frequency Active Sonar to detect quiet diesel and nuclear powered submarines has stirred up a wave of controversy in recent years. Tests of this sonar system coincided very closely with a mass standing of Cuvier’s beaked whales in 1996 in Greece’s Kyparrissiakos, and another standing of beaked whales as well as other species in the Bahamas in 2000. See www.worldwildlife.org

a.  The IWC’s Response to Ocean Noise

Noise and its effects on whales were addressed by the IWC’s Scientific Committee in the late 1990’s. The report stressed the need for further research and called for measures to mitigate adverse affects of noise wherever possible. Recognizing that degradation of whale habitat might threaten stocks, the Scientific Committee identified the "effects of environmental change on cetaceans" as one of its major concerns. However, when the committee released its report on pollution initiatives, underwater noise pollution was not identified as a priority. Plenary Report of the Scientific Community, IWC/51/4, J. Cetacean Res. Manag., 1, 4 (Supp. 1999). To date, no scientific research on the effects of noise on marine mammals has been promulgated by the IWC.

b.  The United States Response to Ocean Noise

The National Marine Fisheries Service (NMFS) has developed an acoustics program. The need for NMFS action on acoustic matters first occurred during the 1987 Heard Island Feasibility Test, when it was determined that the intense sounds from its acoustic source could potentially harass marine mammals and was therefore subject to the take provisions of the MMPA. Under the MMPA, the incidental disturbance, called a take, of small numbers of marine mammals under section 101(a)(5) of the MMPA is allowed. A permit must be applied for and approved. Soon thereafter, the Office of Protected Resources began receiving increasing numbers of requests for authorizations to take marine mammals from activities that produced noise. 

The NMFS is working to define what types of sounds cause "takes" in marine mammals and endangered species. Writing these definitions has been hampered by the fact that hearing ability has only been described for ten species of marine mammals and one species of marine turtle. Even less is known about the harmful effects of intense sound on these hearing structures and about how sound affects the behavior of marine animals. Without such information, some of which is unpublished or in the "gray" literature, it is difficult to write appropriate acoustic criteria. To gather as much information as possible, the Office of Protected Resources convened a workshop of acoustic experts in September 1998 to ascertain the "best available" science in this field at that time. A panel of ten acoustics experts met for two and one half days to answer specific questions posed to them by the NMFS acoustics team. The acoustic criteria are presently being drafted based on the workshop results and other information from the field of animal acoustics. Source: NMFS.

C. Collisions with Ships

Ship strikes or accidental collisions have been blamed for nearly 90 percent of all North Atlantic right whale deaths for which the cause is known. See www.worldwildlife.org . For some mysterious reason, right whales almost always fail to get out of the way of ships. It is possible that acoustic conditions prevent whales from hearing approaching ships, or that whales hear the ship, but have not learned to recognize them as a threat. Large ships have a great deal of momentum and cannot make nimble maneuvers. Whales are relatively hard to spot from a distance, so it is not always possible for ships to take evasive action.

Occasionally, right whales do swim out of the path of an oncoming ship at the last moment. This has given rise to the idea of speed restriction in critical feeding and calving areas in order to give whales more time to avoid oncoming ships. However, some experts are concerned that speed restrictions might increase the incidence of ship strikes because this would increase the vessel’s transit time through a critical habitat area.

The problem of ship strikes is not limited to right whales. With our oceans and rivers becoming even more clogged with traffic, ranging from pleasure boats to oil tankers and high-speed ferries to naval operations, collisions with all cetaceans are on the rise. Many, if not most, ship strikes are not reported, or even noticed. From time to time a cruise ship or other large vessel steams into port with a carcass impaled on its bow, and it is only then that its crew realizes it has struck a whale.

Cetaceans found in coastal areas are especially vulnerable, but it is clear that for the North Atlantic right whale, avoiding ship collisions has become a matter of survival or extinction.

On the North Atlantic right whale calving rounds off Florida and Georgia, federal and state government agencies and other groups have teamed up to develop an early warning system to minimize ship collision. Weather permitting, daily aerial surveys are flown throughout the December-February calving season, and sighting locations are reported. In response to these deaths, United States law prohibits vessels from knowingly coming within 500 yards of a right whale. See www.worldwildlife.org

i. United States Ship Reporting Systems.

In an effort to reduce the number of ship strikes, the U.S. Coast Guard have developed and implemented Mandatory Ship Reporting Systems. The systems were endorsed by the International Maritime Organization – a specialized organization of the United Nations.

The systems became operational in July 1999. When ships greater than 300 gross tons enter two key right whale habitats – one off the northeast U.S. and one off the southeast U.S.-- they are required to report to a shore-based station. In return, ships receive a message about right whales, their vulnerability to ship strikes, precautionary measures the ship can take to avoid hitting a whale, and locations of recent sightings.

Right whales can occur anywhere along the east coast of the U.S. and Canada. Mariners are urged to exercise prudent seamanship in their efforts to avoid right whales. Steps mariners can take to avoid collisions include:

• When planning passage through right whale critical habitat, attempt to avoid nighttime transits, and whenever practical, minimize travel distances through the area. Anticipate delays due to whale sightings.
• When the ability to spot whales is reduced (e.g. night, fog, rain, etc.), mariners should bear in mind that reduced speed may minimize the risk of ship strikes.
• If a right whale sighting is reported within 20-nautical miles of a ship's position, post a lookout familiar with spotting whales.
• If a right whale is sighted from the ship, or reported along the intended track of a large vessel, mariners should exercise caution and proceed at a slow safe speed when within a few miles of the sighting location, bearing in mind that reduced speed may minimize the risk of ship strikes.
• Do not assume right whales will move out of your way. Right whales, generally slow moving, seldom travel faster than 5-6 knots. Consistent with safe navigation, maneuver around observed right whales or recently reported sighting locations. It is illegal to approach closer than 500-yards of any right whale Any whale accidentally struck, any dead whale carcass spotted, and any whale observed entangled in fishing gear should be reported immediately to the U.S. or Canadian Coast Guard noting the precise location and time of the accident or sighting. 

Source: NMFS.

ii. Takings under the ESA and MMPA- Strahan v. Linnon

In 1994, plaintiff Strahan filed a complaint against the Coast Guard alleging violation of various acts, including violations of the ESA and MMPA in response to Coast Guard striking of whales.  Strahan v. Linnon ,1998 U.S.App. LEXIS 16314 (1st Cir. 1998).  The district courts granted the Coast Guard’s motion for summary judgment, but directed that the Coast Guard be required to fulfill certain procedural requirements of the ESA and MMPA. To do this, the Coast Guard submitted a biological assessment to NMFS. NMFS issued an opinion concluding that the Coast Guard did not jeopardize the continued existence of protected marine species. But, NMFS later filed a second biological opinion based on new information that indicated a possible decline in the population of Northern Right whales. NMFS concluded that Coast Guard operations were likely to jeopardize the continued existence of the Northern Right Whales. It recommended reasonable alternatives that would significantly reduce the Coast Guard’s potential to cause injury of mortality to a right whale, and therefore avoid the likelihood of jeopardizing the continued existence of right whales.

In 1997, the Coast Guard moved for summary judgment. This was granted by the district court. In the appeal, the plaintiff Strahan alleges that the Coast Guard is violating the anti-taking provision of the ESA and MMPA, 16 U.S.C. 1538(a)(1) and 16 U.S.C. 1372(a). The complaint alleges that the Coast Guard is liable for takings by its own vessels as well as for takings by non-Coast Guard vessels to which it has issued a Certificate of Documentation (a certification that authorizes sea vessels to operate within the Coast Guard's jurisdiction). The court held that it is undisputed that the striking and killing of the two Northern Right whales does constitute takings in violation of the ESA and MMPA. But, if reasonable and prudent alternatives were implemented, the risk of striking would be reduced by the maximum extent possible. The Court upheld the summary judgment in favor of the Coast Guard in respect to this count as well as other counts. Strahan v. Linnon , 1998 U.S.App. LEXIS 16314 (1st Cir. 1998).

This decision seems to exempt the government, unlike other mariners. But, it may apply to other mariners as well because the Secretary’s discretion is excessively broad. In addition, there are no time constraints placed on implementation of reasonable and prudent alternatives. This broad discretion and lack of time constraints may contribute to the forestalling of the Northern Right Whales recovery.

D. Whale Watching

Whale watching is a way to make a profit without directly harming or killing whales. In many places, whale watching has become a lucrative business. It has become a billion dollar industry, practiced in more than 87 different countries and territories worldwide, attracting over one million boat and land based participants per year. Source: International Fund for Animal Welfare.

In some ways it has also helped in the conservation of whales. For example, Norway, a nation that has expressed a strong interest in resuming commercial whaling is launching successful whale watching programs.

Viewing whales in their natural habitat can be an educational and enriching experience if conducted safely and responsibly. However, when conducted irresponsibly, these activities can be disturbing to the animals (i.e., causing "harassment") and place their health and welfare at risk. Some countries have or are putting in place rules for whale watching.

i. Whale Watching and the IWC

Whale watching was recently put on the agenda for meetings of the International Whaling Commission. The IWC has asked for countries with rules in place to submit them so that a universal set of rules can be made. The IWC has recommended that:

1. vessels, engines, and other equipment should be designed, maintained, and operated during whale-watching, to reduce as afar as practicable adverse impacts on the target species and their environment;
2. cetacean species may respond differently to low and high frequency sounds, relative sound intensity or rapid changes in sound; vessels operators should be aware of the acoustic characterizes of the targets species and of their vessel under operating condition; particularly of the need to reduce as far as possible production of potentially disturbing sound;
3. vessel design and operation should minimize the risk of injury to cetaceans should contact occur; for example, shrouding of propellers can reduce both noise and risk of injury. It is also recommended that operators of whale-watching vessels avoid sudden changes in speed, direction, or noise.

ii. Whale Watching and the MMPA

There is concern that whale watching can lead to harassment, an act that is illegal under the Marine Mammal Protection Act. Specifically, efforts by the public to closely approach, pet, touch, feed, swim with or otherwise interact with wild whales to view the animals in their natural habitat can lead to "harassment," an act that is illegal under the Marine Mammal Protection Act (MMPA). The MMPA prohibits the "take" of marine mammals which is defined as "to harass, hunt, capture or kill, or attempt to harass, hunt, capture or kill any marine mammal." The term "harassment" is further defined as "any act of pursuit, torment or annoyance:

Level A harassment has the potential to injure a marine mammal or marine mammal stock in the wild; or Level B Harassment has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering."

The MMPA does not provide exemptions to the "take" prohibition for viewing or interacting with wild marine mammals. Therefore, interacting with wild marine mammals should not be attempted, and viewing marine mammals must be conducted in a manner that does not "harass" or "take" the animals. Source: NMFS. Under the MMPA, it can be argued that the activity of whale watching is a taking due to its intrusive nature. Certainly it can be stated without contradiction, that when a whale is struck and killed by a whale watch vessel a taking has occurred. But, when a whale is not struck, the difficult question of whether a taking is incidental to the activity and whether whale watching is an activity which can be permitted under the Act arises. The language of the MMPA is ambiguous pertaining to the activity of whale watching. For whale watching to constitute a taking, under the MMPA, the taking must be classified as intentional. But, if the taking is considered to be incidental to whale watching, it would not be in violation of the MMPA. In addition, harassment of whales while whale watching under the MMPA is also ambiguous. An amendment to the Act concerning the meaning of these terms would decrease the number of lawsuits that may ensue due to the ambiguity of the MMPA as it applies to whale watching.

V. Conclusion - An Ethical Standpoint

Although man has manifestly believed himself to be the highest intelligence on the earth, scientists have speculated that the great whales, mammals with brains six times the size of humans', are beings with higher than human intelligence. The behavioral similarities between whales and man have long been established by the scientific community, and these similarities have raised considerable concern about man’s reluctance to allow these creatures to live beside us unharmed.

The Federation of American Scientists has noted that, "there is a good deal to be said for empathizing with whales, as the area of the whales brain associated with the control of emotion is equally well developed to that of man." Tom Regan, All That Dwell Therein: Essays on Animal Rights and Environmental Ethics (1982) (citing a Federation of American Scientists 1977 Public Interest Report). Additionally, whales, like man, communicate with others of their same kind in a language that has been described as an "abstruse mathematical poetry." Anthony D’Amato & Sudhir Chopra, Whales: Their Emerging Right to Life , 85 Am. J. Int’ L. 21, 22 (1991). And unlike man, whose ability to communicate with other species is rudimentary at best, whales have developed interspecies communication with other sea creatures such as dolphins. Like man, whales care for their young and the young reciprocate affection after being reared and finding independence form their mothers. Whales are social animals who live in large groups, and some species live monogamous lives, taking only one mate. Documented evidence exists of incidents in which a whales is harpooned and taken ashore and its mate has lingered, waiting offshore for days, and sometimes weeks before departing out to sea.

All of the scientific evidence gathered about whales has led to serious questions regarding the morality of killing such beings. If whales are, as scientists believe, sentient, intelligent beings who, like man, can feel pain and suffering, is it just to destroy such animals? This question has resulted in intense conflict between governments but inevitably, it is the whales who have suffered. Each piece of legislation, and each international declaration which is enacted to preserve whales through the punishment of those who unjustly hunt these creatures is a step in the right direction, to preserve the future for these incredible beings. See Lessoff, Jonah Swallows the Whale , 11 J. Envtl. L. & Litig. 413 (1996).

The steps taken by the international community may be the only thing that stands between the whales and extinction. Many countries are now focused on "saving the whales" more than ever. But, until other countries follow their lead and consider the ethical standpoint of threats to whales rather than profits that come from whaling, net fishing, chemical using, etc. the future of whales is still, sadly, unknown.