Protection of Marine Mammals At Issue in Bills Before Congress

Critics assail a proposal that would make agencies prove harm to animals before fishing is limited

CONGRESS is wrestling over legislation sure to affect the future of whales, dolphins, seals, and other marine mammals. At stake are species depleted by human activity. Watching carefully are fishing communities from New England to Alaska.

The issue is reauthorization of the Marine Mammal Protection Act (MMPA) of 1972, the first major wildlife conservation law passed in the United States and precursor to the Endangered Species Act passed a year later.

The law prevents the import or the ``taking'' of marine mammals, although it allows exemptions for scientific research, public display in aquariums, and some ``incidental'' taking that results from commercial fishing.

The Senate Committee on Commerce, Science, and Transportation has approved legislation that will be taken up by the Senate shortly. That bill, whose chief sponsor is Sen. John Kerry (D) of Massachusetts, would reauthorize the act in a way many conservationists and marine biologists say would weaken protections for marine mammals.

Among criticisms of the Senate bill: It would make it easier to ``take'' not only depleted stocks as part of commercial fishing but also threatened and endangered species; it would weaken the monitoring program; it would reduce penalties for violations; and most significantly, it would shift the burden of proof in determining whether an incidental taking will adversely affect marine-mammal stocks.

Behind the scenes, there has been a flurry of Capitol Hill lobbying by conservationists and the fishing industry to influence proposed legislation before the April 1 deadline for reauthorization. Many people involved expect bills in the Senate and House to change before then.

Under current law, the burden of proof is on fishermen to show no harm would be done. Under the Senate bill, federal agencies would have to prove damage would be done in order to limit fishing and its economic benefit to many communities.

``This proposed change is not insignificant. It is a profound philosophical and practical change in the basic structure of the act,'' warns John Twiss, executive director of the Marine Mammal Commission, created under the 1972 legislation to advise Congress and federal agencies.

In a Dec. 9 letter to Senate commerce committee chairman Ernest Hollings (D) of South Carolina, Mr. Twiss wrote: ``Shifting the burden of proof from resource-users to the agencies responsible for conserving those resources is contrary to both sound principles of wildlife management and the purposes and policies of the act.''

Burden questioned

This view is shared by leaders of 29 conservation and research groups, who wrote to Senator Kerry Jan. 11: ``Many key provisions of the bill would severely weaken protections contained in the MMPA....''

Nine scientists from such organizations as the Woods Hole Oceanographic Institute and the New England Aquarium more recently expressed similar reservations about the Kerry bill.

The National Marine Fisheries Service estimates that 15,000 to 20,000 marine mammals are killed each year in United States waters as a result of commercial fishing.

Christopher Croft, a former federal observer aboard tuna-fishing boats in the Pacific and now marine wildlife coordinator with Defenders of Wildlife, points to other government data indicating that at least six marine mammals are caught and killed in fishing nets for every one reported by fishermen.

Mr. Croft notes the time it takes for such animal populations to grow, given a gestation period of 18 months or so and only two or three offspring per female over a lifetime. ``The North Atlantic right whale [whose numbers have dwindled to about 350] would take hundreds of years to recover even if the impact of fishing were to stop now,'' he says.

Senate bill likely to change

Speaking of the Kerry bill to be taken up by the full Senate, Nina Young of the Center for Marine Conservation says: ``In all likelihood, we'll see a fairly different Senate bill in the next few weeks.''

In the House, Merchant Marine and Fisheries Committee staff are working on changes to a reauthorization bill introduced last summer by committee chairman Rep. Gerry Studds (D) of Massachusetts.

Negotiations have been going on involving environmentalists and fishing-industry representatives.

The result, says committee staff member Karen Steuer, will be a bill that ``will differ substantially'' from the original proposal.

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