Marine Mammal Protection Act:
Lethal Removal of Marine Mammals
Cynthia Hodges, J.D., LL.M., M.A.
Each applicant for a permit under the Marine Mammal Protection Act (“Act”) must demonstrate that a taking under such permit would serve the purposes of the Act.1 The purpose of the Act is to protect marine mammals.2 To that end, the Act has placed a moratorium on the taking of marine mammals.3 However, the Secretary may issue a permit to take marine mammals under certain circumstances: “for purposes of scientific research, public display, photography, for educational or commercial purposes, or enhancing the survival or recovery of a species or stock.” 4
The permit must be consistent with the provisions of §§ 1373 and 1374. § 1373 provides that
The Secretary, on the basis of the best scientific evidence available ... shall prescribe such regulations with respect to the taking ... of animals from each species of marine mammal ... as he deems necessary and appropriate to insure that such taking will not be to the disadvantage of those species and population stocks and will be consistent with the purposes and policies set forth in section 1361 of this title.5
The taking, therefore, must not be disadvantageous to the species or disadvantageous to their population stocks. It must also be consistent with § 1361, which states that marine mammals “should be protected...”6
§ 1374 further requires that the permit shall specify “the location and manner (which manner must be determined by the Secretary to be humane) in which [marine mammals] may be taken...”7 “Humane” is defined in the Act to mean “that method of taking which involves the least possible degree of pain and suffering practicable to the mammal involved.”8
To fulfill the requirements of § 1389, the animals to be taken must be individually identifiable as having a significant negative impact on the decline or recovery of endangered or threatened salmonid fishery stocks.9 “Any such application shall include a means of identifying the individual pinniped or pinnipeds...”10 Therefore, an individual animal may be taken if it has been identified as having a significant negative impact on salmon. Unfortunately, “significant negative impact” is not defined in the Act. However, one can look to the dictionary definition to determine what is meant. American Heritage Dictionary defines “significant” as “having or likely to have a major effect; important.”
In the case of the sea lions lethally removed from Bonneville Dam in Oregon in 2008, individual animals did not have the requisite “major effect” or “important” impact on the decline or recovery of salmon stocks. The National Marine Fisheries Service’s own data did not satisfy the requirement that sea lion predation is having a “significant negative impact” on the decline or recovery of salmonids. The Draft Environmental Assessment, “Reducing the Impact on At-risk Salmon and Steelhead by California Sea Lions in the Area Downstream of Bonneville Dam on the Columbia River, Oregon and Washington” (January 11, 2008) contained a table on page 4 that summarized the yearly minimum pinniped take observation data at Bonneville Dam. According to the table, pinniped predation of salmonids constituted a mere 4.2% of the salmonid run size in 2007. In other words, all of the sea lions at Bonneville Dam were taking approximately 4.2% of the salmon run. 4.2% can hardly be considered “major,” “important,” or “significant,” especially considering that the impact of a single individual would be much smaller. If an individual sea lion did not have the requisite significant negative impact on salmon stocks, then there was no authority under the Act to issue a permit to take it.
Even if there is authority to issue a permit to take these sea lions under § 1389, there are further requirements that must be satisfied under the Act before such a permit may be issued. For example, the Pinniped-Fishery Interaction Task Force is required to suggest non-lethal alternatives in response to a state’s application for a permit to take a marine mammal.11 In addition, if
[A]n application for a permit cites as a reason for the proposed taking the overpopulation of a particular species or population stock, the Secretary shall first consider whether or not it would be more desirable to transplant a number of animals ... to a location not then inhabited by such species or stock but previously inhabited by such species or stock.12
In other words, if it is found that there are too many animals in an area, the option of moving them to another location must first be considered before a permit to take them may be issued.
1 Committee for Humane Legislation, Inc. v Richardson, 540 F2d 1141 (D.C. Cir. 1976).
2 16 USC § 1361(6).
3 16 USC § 1371(a).
4 16 USC § 1371(a)(1).
5 16 USC § 1373(a).
6 16 USC § 1361(6).
7 16 USC § 1374(b)(2(B).
8 16 USC § 1362(4).
9 16 U.S.C. § 1389, Sec. 120(b)(1).
10 16 U.S.C. § 1389, Sec. 120(b)(2).
11 16 U.S.C. § 1389(c)(3)(B).
12 16 U.S.C. § 1374(b)(2).