Interpretation Of Wasteful Manner Within The Marine Mammal Protection Act And Its Role In Management Of The Pacific Walrus

On October 21, 1972, when President Nixon signed the Marine Mammal Protection Act (MMPA, or the Act) into law, its passage resulted in the transfer of management of marine mammal species from State to Federal government. Although the MMPA was spurred into law by the tenuous circumstances of some of the world’s marine mammal species, and by public outcry about both the high incidental take of dolphins in tuna fisheries and seal pup harvest in the North Atlantic, it also became an umbrella policy designed to provide both national and international protections to all marine mammals. Indeed, Congress specifically found that: [m]arine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Despite the clear intentions to protect marine mammals, persistent disagreements between many competing interests led to compromises within the Act. Two of the competing interests were, on the one hand, a continued sustainable harvest of non-depleted marine mammal species, and on the other, complete protection from all harvest. The compromises within the MMPA are reflected in the vagueness of the statute’s language, which has made interpretation difficult, at best. Native Alaskans are permitted to “take” marine mammals for “subsistence” under the MMPA, provided it “is not accomplished in a wasteful manner.” However, there is no guidance in the statute as to what a “wasteful” manner would be. Furthermore, the term “wasteful” only occurs at two other points in the MMPA: one reiterating the same requirements for Alaska Natives under a different management scenario, and the other unrelated. Those usages do not provide additional context from which to infer a definition. In the case of Pacific walrus, this uncertainty, along with the implementation and enforcement of several aspects of the MMPA, actually create perverse situations that are not conducive to protecting walrus, or reducing waste. In this article, we demonstrate that although the interpretation of “wasteful manner” is fundamental to current management of the Alaska Native walrus hunt, waste has consistently been inadequately addressed and poorly clarified. Therefore, we provide an analysis of how the term “wasteful” was likely intended by Congress, and how it is interpreted by the agencies in charge, by the courts, and by the representatives of Native walrus hunters. We demonstrate how these various interpretations affect the MMPA’s goal of protecting walrus. We then describe why the lack of resolution concerning wasting the walrus poses significant problems for both the Native community and the U.S. Fish and Wildlife Service (USFWS). Finally, we conclude by presenting alternative interpretations and strategies used or considered elsewhere that might clarify the intent, purpose, and definition of “wasteful manner,” while presenting some avenues of possible resolution