The incidental entanglement of marine mammals in commercial or artisanal fisheries is an international problem. Of growing concern are instances where incidental marine mammal mortality evolves into directed fisheries. For example, in Peru, incidental dolphin mortality in coastal gillnets burgeoned into directed hunts that by 1990 exceeded 10,000 dolphins annually, endangering the dusky dolphin (Lagenorhynchus obscurus).

Although many countries have national statutes that protect marine mammal habitat or the animals themselves from hunting or trade, many of these laws are inadequate and rarely enforced. The U.S. is similar in this regard. The existing Marine Mammal Protection Act (MMPA) is ineffective in resolving our domestic incidental take of marine mammals in commercial fisheries -- the most illustrative case is dolphin mortality in tuna fisheries. Before we market the MMPA as a benchmark toward which other nations should aspire, we must resolve our own commercial fisheries mismanagement and marine mammal/fishery conflicts and incidental take. The 1992 reauthorization of the MMPA will give us that opportunity; however, we must act to expose and thwart proposals which merely perpetuate the status quo.

If we as scientists have any hope of conserving marine mammals beyond our borders, we must encourage decision makers to establish international agreements and programs that provide nations with the impetus to pass new legislation or modify and enforce existing legislation to protect and conserve marine mammals. In the MNIPA exists an obscure directive which calls upon the Secretary of State to negotiate international agreements for the protection of marine mammals. Encouraging the use of this directive may be the key to conserving marine mammals in the twenty-first century.

Introduction - Examples of the Over Exploitation of Small Cetaceans

Throughout the world, the commercial over-exploitation of marine mammals, primarily of small cetaceans, is an escalating problem, particularly for those species for which little population data is available. Scientists are only now beginning to comprehend the global scope and immense magnitude of this problem. In recent years scientists have discovered that over-exploitation may take the form of incidental capture and killing of small cetaceans in commercial fisheries, subsistence fisheries, and directed hunts (sometimes commercial in nature) for meat, other products, or merely for use as bait. Further, over-exploitation of commercial fish stocks that are themselves the prey of these animals, may also contribute to the demise of a population. The following are more salient international examples of overexploitation:

River dolphins, a group of small cetaceans about which very little is known, include several species that are in imminent danger of extinction. The river dolphin's tropical habitats, which exist almost entirely within the boundaries of developing nations, cause them to be particularly susceptible to direct hunts, incidental fishery takes, and habitat destruction.

The Ganges river dolphins, Plantanista gangetica, are still hunted (illegally) in India, Bangladesh, Bhutan, and Nepal (Perrin and Brownell 1989), where their remaining populations are either rapidly declining or are critically endangered. Along the Brahmaputra and Ganges River, and elsewhere, the Ganges river dolphins are hunted for the medicinal qualities of their meat, oil, and eyes. The oil is also used to attract catfish in a net fishery. Fishermen kill approximately 40 dolphins annually for these purposes, and although these catches are small, the already reduced population makes them obviously significant. In addition to these direct hunts this species also faces a barrage of threats from pollution, dams, and mining.

The Chinese river dolphin, baiji, (Lipotes vexillifer) is subjected to several forms of, human-induced mortality. The greatest threat seems to be entanglement/incidental takes. Chinese fisheries incidentally take baiji primarily in rolling hook long-lines and stake net traps in the Chang Jaing (Yangtze) River. Dolphins become entangled when they investigate fish snagged by the sharp hooks tied every few centimeters to the long-line. Between 1978-1985, 31 baiji were found dead in the lower Yangtze River; 22.6% of those deaths were caused -by incidental entanglement in rolling hook long-lines (Kaiya 1990). Rolling hook long-lines caused 53.5% of the 28 baiji deaths in the middle reaches of the Yangtze River between 1973-1983 (Kaiya 1990). Stake net traps are another threat to the baiji. In the lower Yangtze stake net traps have caused 16.1% of the baiji deaths. Although the baiji is protected by strict regulations, deaths and injuries from incidental gear entrapment continue to have a significant impact on this population.

River dolphins are not the only species in peril, of special concern to scientists are incidental takes that have engendered directed fisheries. For instance, a Peruvian incidental catch of dolphins and porpoises in coastal gillnet fisheries for sciaenids and sharks became a directed fishery for small cetaceans. In the 1970s, the El Nino and overfishing contributed to the near-extinction of Peruvian stocks of anchoveta. Struggling to maintain a living, these fishermen began using gillnets to kill dolphins, selling their catch and exploiting markets created previously by the sale of dolphins caught incidentally in other fisheries. Four species, dusky dolphins Lagenorhynchus obscurus, -Burmneister's porpoise Phocoena spinipinnis, bottlenose dolphin Tursiops truncatus, and common dolphin Delphinus delphis, account for more than 99% of the catch; with dusky dolphins representing more than three quarters of the total kill. The dolphin catch in the directed fishery may exceed 10,000 in some years and may be sufficient to endanger the populations(s).

The Peru case is an example of fishery shifts that can occur in impoverished and less developed countries when fisheries are overfished and/or economically dislocated.

Venezuela and Chile also have what may amount to substantial directed hunts for marine mammals. In both cases marine mammals are killed for use as fishing bait. What began as an incidental take of dolphins in northeastern Venezuela has escalated into a commercial fishery where dolphins are harpooned, shot, caught by trot-lining (multi-hook long-line), or clubbed and sold to the shark fishery as bait. Seventeen to 26 fishing vessels hunt dolphins, with each vessel killing approximately 400 dolphins each year. The death toll is from these hunts is reaching more than 7,000 dolphins annually.

The crab industry in Chile is killing penguins, sheep, seals, sea lions, sea birds, and dolphins for bait. As a result of this fishery, marine mammal populations in the areas of the western Straits of Magellan, the Patagonian and Fuegian passages, and the Archipelago south of Tierra del Fuego are declining. Since most crab companies within the Straits of Magellan do not provided bait, fishermen kill South American sea lions Otaria flavescens, South American fur seals Arctocephalus australis, Commerson's dolphins Cephalorhynchus commersonii, Peale's dolphins Lagenorhynchus australis, and dusky dolphins Lagenorhynchus obscurus, Chilean dolphins Cephalorhynchus eutropia, Burmeister's porpoise Phocoena spinipinnis, guanacos Lama guanicoe, and penguins Spheniscus magallanicus, and Eudyptes crestatus. In the 1978-79 season fishermen harpooned or shot 4,120 dolphins, more recent estimates are unavailable. As the crab fleet continues to grow it is expected that this bait fishery will bring species such as the Commerson's dolphin to the brink of extinction.

As stated above these are just a few of the more egregious examples of the overexploitation marine mammals. In addition to these examples, in 1991, the International Whaling Commission's (IWC) Sub-Committee on Small Cetaceans (IWC 1991), provided a more comprehensive review of cetacean takes, specifically incidental takes in gill nets, and expressed special concern for what are possibly unsustainable incidental takes of the Gulf of California harbor porpoise in Mexico, bottlenose dolphins off the Natal coast of South Africa, striped dolphins in the Mediterranean Sea, and harbor porpoise in the North Atlantic. The Sub-Committee also identified several subsistence hunts by indigenous peoples which have or are leading to the depletion of marine mammal populations. For example, Canadian native hunters have severely depleted several beluga whale stocks, while Russian subsistence takes of belugas, and Canadian and Greenland takes of narwhals and harbor porpoise are also a concern.

Having established the global nature of this problem, what national and international mechanisms are available to resolve or mitigate this mortality? More importantly, is the United States in a position, given its own national legislation, to assist these nations or be a leader in helping nations resolve these conflicts?

National Laws Protecting Marine Mammals

The United States and New Zealand are recognized by the international community as having some of the most progressive and comprehensive marine mammal protection legislation in the world. But that does not imply that other nations do not afford marine mammals within their waters some measure of protection; on the contrary, Atkins (1989) and the Fisheries and Agriculture Organization (FAO) (1986) extensively reviewed national statutes for marine mammal protection. In fact, several of the nations highlighted in the previous discussion as having excessive or even unsustainable takes of marine mammals have laws protecting and even prohibiting the takes of these animals. Nonetheless, how effectively a nation, including the United States, monitors and enforces these statutes is directly reflected in the nation's marine mammal mortality. The following accounts of national laws protecting marine mammals, while by no means comprehensive, illustrates the point that these statutes do exist, while Table I characterizes their relative ineffectiveness.

India

According to FAO (1986), cetaceans are listed on Schedule I of the Wildlife Protection Act of 1972, and hunting is therefore completely banned. However, a 1979 proposal to CITES by the United Kingdom states that Plantanista gangetica is listed on Schedule II, prohibiting hunting except by license. Regardless, both listings would allow taking by license for educational or scientific purposes or for public display. Although the Act provides for the designation of sanctuaries, no sanctuaries have been identified.

Nepal

Hunting of river dolphins, Plantanista gangetica, is prohibited by the National Parks and Wildlife Conservation Act, and punishable by a fine and/or imprisonment (Atkins 1989). The Act also established the Royal Chitwan National Park, where Plantanista gangetica is occasionally sighted. All wildlife exploitation is prohibited in the Park. P. gangetica is also found in the Royal Karnali Wildlife Reserve.

Bangladesh

The Third Schedule of the Bangladesh Wildlife (Preservation) Order, 1973 lists Plantanista gangetica as a protected animal. Hunting, capture, or killing of protected animals is prohibited; however, the government may permit killing of protected species "in the interest of scientific or any public purpose" (Atkin 1989). "Public purpose" is not defined in the Schedule.

China

Article 27 of the Fishery Law of the People's Republic of China (1986) prohibits the catching of protected species. The 1979 Regulations Regarding the Propagation and Protection of Aquatic Resources "prohibits the bombing, poisoning, use of electric power, and the drastic exploitation of marine mammals. The catching, sale and export of river dolphins is also prohibited by a 1983 State Council Decree Concerning the Strict Protection of Rare Wild Animals."

In a 1980 Proclamation, the Hubei province prohibited the catching or harassment of the baiji, Chinese river dolphin, through a regulation that "restricted the use of explosives and poisons for fishing, and set forth measures to be taken if any dolphins are stranded or caught during fishing operations." In the same year, the province of Anhui issued similar regulations prohibiting the hunting of baiji. "The most recent legislation, and the one with the most apparent application to incidental take, is the Fishery Law of the People's Republic of China, adopted in January of 1986. Article 27 of this law prohibits the catching of protected species and makes such catching a criminal act." (Atkins 1989).

Peru

In November 1990, Peru enacted legislation that prohibits the taking, processing, and trading of cetaceans in Peruvian waters. Other pre-existing statutes that characterize native species for purposes of hunting into groups of protected and unprotected species, do not list marine mammals. The boutu (Inia geoffrensis) and the tucuxi (Sotalia fluviatilis) are protected by Decreto No. 934-73-AG of 1973 which prohibits the hunting, capture, and trade of all Selva region species (Atkins 1989).

Venezuela

Hunting and trade of indigenous species is regulated by the Ley de Protecciona la Fauna Silvestre (1970). Hunting is only prohibited on those species listed as a game species and included under the hunting regulations. Non-game species may be exported or taken for scientific purposes. Further some species are protected by specific resolutions: Resolucion 95 (1979) prohibits the hunting of certain species whose populations are too low. River dolphins and most other species of dolphins are not listed as specifically protected or as game species (Atkins 1989).

Chile

Decree No. 381 of 1 Sept. 1977 recognized an urgent need for the conservation and protection of dolphins and porpoises. Under this decree the taking of these species requires a special permit from "La Direccion de Pesca y Caza del Servicio Agricol Y Ganaderon". The permit establishes the area, methods, numbers, age, sex, and methods of processing these species. A closed season from I Sept. to 31 March was established during which all hunting is prohibited (FAO 1986).

Mexico

Mexico has decreed that Laguna de Liebre, Manuela Lagoon, Guerrero Negro Lagoon, and San Ignacio Lagoon, are sanctuaries for whales and their calves. Mexico monitors vessel traffic in these areas, with no more than two foreign ships allowed at any time; furthermore their entry may be conditional upon the presence of a Mexican scientific official (FAO 1986).

Circular No. 20 of 12 September 1977 was implemented to protect marine mammals-dolphins and porpoises in particular.

This document prohibits the taking of marine mammals, and also states that the capture of marine mammals should be avoided during tuna fishing operations. Mexican tuna fishing vessels are required to have equipment on board to aid in the immediate release of mammals caught in the tuna nets. The Department of Fisheries has the authority to place observers aboard vessels to implement these regulations. Fishermen are also required to report any marine mammal mortalities to the Fishing Commissioner. (FAO 1986).

The vaquita is protected by the Mexican government as an endangered species.

Canada

Canada does not have an MMPA or an Endangered Species Act equivalent. The only existing statute is the Wild Animal and Plant Protection Act which governs commerce in depleted species.

Table

United States Protection of Marine Mammals

As Table 1 clearly demonstrates, the United States--for all its potential protection afforded marine mammals in the Marine Mammal Protection Act and the Endangered Species Act--is no less a culprit. The MMPA may, in theory, provide marine mammals in the United States with more protection than the statutes discussed above. In practice, however, the incidental takes of marine mammals in commercial fisheries is a problem relatively equal in magnitude to incidental takes in other nations.

Therefore, despite the reputation of the MMPA, the United States is hardly in a position to promote the MMPA as a marine mammal conservation benchmark toward which other nations should aspire. Further, recognizing the Act's current inability to regulate incidental takes in commercial fisheries, the United States can hardly lead global efforts to resolve these conflicts with commercial fisheries.

How did such a progressive piece of legislation become so flawed? To answer this question takes an examination of the Act and the 1988 amendments to the MMPA. The fundamental goal of the Marine Mammal Protection Act (MMPA) is to protect these animals of "great international significance, aesthetic and recreational as well as economic." The Act claims among its purposes that of moving populations toward historic levels, and eliminating human-caused mortality (the zero mortality rate goal). The Act's principal mechanism to accomplish its purposes is a ban, or moratorium, on all taking (harassing, injuring or killing) of marine -mammals by human activity. Certain limited exemptions have been allowed for takes of small numbers of marine mammals for a variety of purposes (e.g. research, public display, subsistence hunts, and oil and gas exploration). Permits to conduct these actions are issued by the National Marine Fisheries Service according to regulations that govern these takes.

In 1987, an analysis of incidental takes of marine mammals in commercial fisheries throughout North America served to focus agency and congressional attention on the interactions between marine mammals and commercial fisheries (CMC 1987). That same year, several conservation groups successfully challenged, in court, the MMPA permit system that authorized incidental takes in commercial fisheries (Kokechik Fishermen's Association v. Secretary of Commerce, 1987). That decision, combined with insufficient scientific information to show that takes in commercial fishing were not harming marine mammal species, provided the impetus for amendments to the MMPA.

The 1988 amendments to the MMPA included a 5-year program exempting commercial fisheries from the taking prohibitions of the Act. This limited exemption, now in its third year, allows incidental takes of marine mammals in fishing gear ranging from coastal gillnets in New England to massive trawls in the Bering Sea--interactions between 39 different fisheries and 40 species of marine mammals. The exemption was designed to allow commercial fishing to continue while the National Marine Fisheries Service (NMFS) stepped up its data gathering, observations, and research on marine mammal/fishing interactions, and using this data, develop a permanent regime to regulate incidental takes in commercial fisheries to replace the current exemption during the next reauthorization of the MMPA.

A Window of Opportunity - A Chance to Implement a Program to Reduce Incidental Takes

In 1993, the United States will amend and reauthorize the MMPA. This reauthorization provides an opportunity to develop and implement a regulatory program that would reduce the incidental takes of marine mammals in commercial fisheries. However, to date NMFS's initial proposals for such a program appear to weaken the fundamental protections of the MMPA for several reasons:

1.  the proposed Potential Biological Removal, while scientifically valid in principle, does not sufficiently define stock or detect population trends;

2.  the proposal is incongruous with current MMPA take requirements for oil and gas exploration and development, scientific research, and public display; and

3.  the proposal lowers the standard of proof required to allow incidental mortality and lacks a procedural requirement that compels commercial fisheries to comport with MMPA practice and policy.

First, the agency's proposal would allow incidental takes of marine mammals-including depleted and threatened species--under a regime of "potential biological removal (PBR)," a term used to describe a process for determining at what level fisheries could be allowed to interact with or take (in this context take defined as serious or lethal injury or removal from the wild) marine mammal populations without causing an adverse impact to the population. While the actual calculation of PBR appears, for the most part, to be scientifically valid, as a potential management tool the PBR calculation has two flaws: 1) PBR does not adequately assess a population's trend, in fact the PBR calculation apparently can not accommodate populations that are not increasing and has particular problems with populations that are declining (e.g. Stellar sea lions); and 2) PBR as currently calculated does not sufficiently define or manage marine mammals on a stock by stock basis, instead the PBR is calculated on a regional basis for most stocks.

Second, the proposal addresses only serious injury or removal from the population (death or removal from the wild for research or public display purposes). The regime is therefore incongruous with other take requirements of the Act, and creates a double standard for commercial fisheries within the MMPA. For example oil and gas exploration and scientific research are still required to apply for and have a permit or small take exemption to harass marine mammals, but under this proposal commercial fisheries may harass unlimited numbers of marine mammals without any permit or reporting requirements. In other words, scientists must have a permit to harass marine mammals for photo identification research or to disentangle marine mammals from commercial fishing gear, but a fisherman can harass marine mammals through entanglement and release without a permit.

Third, the proposal lowers the standard of proof required to allow incidental mortality and lacks a procedural requirement that compels commercial fisheries to comport with MMPA practice and policy. The proposal contains no procedural requirement that places responsibility with the fishery to demonstrate that its incidental takes are necessary and will not cause harm. Furthermore, because the proposal lacks action-forcing mechanisms to compel the industry to "fish clean" and does not necessarily focus protection or management at the most important or needy marine mammal stocks, the proposal may actually encourage increasing takes of marine mammals and move commercial fisheries further away from the MMPA's goal of zero mortality of marine mammals. For example stocks that frequently interact with commercial fisheries, such as harbor seals and California sea lions in the Pacific Northwest, may not receive adequate monitoring and actually suffer an increase in incidental mortality.

Despite these problems the agency's proposal provides a scientific framework from which we can amend the MMPA to properly regulate incidental takes in commercial fisheries, and thereby comply with the conservation mandate of the MMPA. The task before Congress, agency representatives, scientists, the commercial fishing industry, and conservation organizations is to structure a program to regulate and reduce incidental mortality in commercial fisheries such that it integrates well with existing take regulation in the MMPA, provides an incentive to strive toward the goals of the MMPA (moving population toward historic levels), places the scientific burden on the proper agencies, and demands factual operation responsibility from commercial fisheries. On that basis the MMPA should be amended to include the following:

 an application by fisheries seeking permission to take marine mammals

 substantial fact-finding by the industry on interactions with marine mammals

 and by the agency on marine mammal population abundance;

 a differentiated permit and authorization system dependent on the nature of takes (lethal or non-lethal); and

 where possible retention of existing processes to determine Optimum

 Sustainable Population within the MMPA including ample opportunities for

 public participation, formal rule-making, and administrative hearings.

The International Side of the MMPA - The Need to Conserve Marine Mammals Through Multi-National Agreements

Successfully amending the MMPA to incorporate a regime to reduce incidental mortality is only one of many steps necessary to conserve marine mammals. Marine mammals are highly migratory species that traverse the waters of many nations, For example, the northeastern Pacific gray whale in its annual migration can transit through the EEZ's of Russia, Canada, the United States, and Mexico; consequently, protecting marine mammals within ones own waters does not furnish these animals with adequate protection.

The ocean, in a sense is also smaller, commercial fisheries do not merely operate in their own waters, foreign fisheries and joint venture fisheries exploit the commercial fish stocks of neighbor nations, nations on opposites sides of the same ocean, and nations in completely different oceans. For example, in the late 1970s and early 1980s foreign and joint venture Pollock fisheries in the North Pacific and Bering Sea incidentally took between 500 and 1000 Stellar sea lions annually (NMFS 1991).

Therefore, effective conservation of marine mammals must extent beyond each individual nation's commercial fishing fleet and territorial waters. The key to conserving marine mammal and perhaps preventing the extinction of species such as the river dolphins is for the international scientific and conservation communities to provide credible information on the threats facing marine mammal populations and to encourage decision makers to establish international agreements and programs that provide nations with the impetus to pass new legislation, modify and enforce existing legislation, or enter into bi- and multi-national conservation agreements to protect marine mammals.

In the MMPA exists a little-known directive which calls upon the Secretary of State to negotiate international agreements for the protection of marine mammals. Specifically Section 108 (a) (2)(A) states that "The Secretary, through the Secretary of State, shall initiate negotiations as soon as possible with all foreign governments which are engaged in, or which have persons or companies engaged in, commercial fishing operations which are found by the Secretary to be unduly harmful to any species or population stock of marine mammal, for the purpose of entering into bilateral and multinational treaties with such countries to protect marine mammals." The MMPA also provides for the negotiations of international agreements that afford protection to important marine mammal habitat, Section 108 (a) (3) states that "The Secretary, through the Secretary of State, shall encourage such other agreements to promote the purposes of this Act with other nations for the protection of specific ocean and land regions which are of special significance to the health and stability of marine mammals."

In this Section of the MMPA, the United States possesses perhaps one of the keys to international conservation of marine mammals. It would be reprehensible if the United States neglected to seize this opportunity or abdicated its environmental responsibility altogether. But other nations must be themselves willing to participate and at times assume a leadership role either internationally or domestically especially when it pertains to conservation issues that impact animals that are almost entirely within their territorial waters.

In conclusion, recent rulings on the use of trade restrictions to protect the environment issued by dispute panels under the General Agreement on Tariffs and Trade (GATT) support multinational conservation agreements rather than unilateral trade actions to compel nations to improve their marine mammals' conservation practices. In the twenty-first century, whether the nations of the world will be able to properly conserve marine mammals and their habitat, prevent any further extinction of the species, and mitigate such threats as over-exploitation in commercial and artisanal fisheries rests in the global scientific and environmental communities' and governing bodies' ability to negotiate and implement conservation agreements for marine mammals that transcend geographical boundaries.