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Over its twenty-four year history, the Marine Mammal Protection Act of 1972 (MMPA) has had both its successes and its failures, yet it remains one of the cornerstones of marine conservation and one of the most effective mechanisms to protect marine mammals. Marine mammals now face threats, however, that are global in scope and involve humans and our shared use of the marine environment. Diminishing marine resources and diminishing federal funds force fishers and conservationists to develop creative initiatives to conserve marine mammals, marine habitats, and species diversity, while still promoting economically viable fisheries. Marine mammals often compete with humans for the same fish, or occur in areas where fishing is conducted. As a result they are sometimes incidentally taken during commercial fishing operations. The regulation of such operations to protect marine mammals has become a critical, and often volatile, issue. Since its enactment, the MMPA has prohibited the take of marine mammals incidental to commercial fishing unless authorized by an incidental take permit or a small take exemption. The problem of the incidental take of marine mammals in commercial fishing reached a climax in 1988, when it became apparent that the National Marine Fisheries Service (NMFS) was unable to make the necessary determinations that would enable it to authorize takes for affected marine mammal stocks. The resulting Kokechik Fishermen's Association v. Secretary of Commerce court decision uncovered the permit-issuing system's inherent flaw: the fact that the information upon which permit-issuing decisions were being made was not sufficient to be certain that incidental takes would not harm marine mammal stocks. This discovery brought together representatives of the environmental community and the fishing industry in 1988 to find a way to enable fishers to fish, while minimizing the impact of their activities on marine mammals. These representatives agreed on a series of points which they subsequently presented to the Senate Commerce Committee and the House Merchant Marine and Fisheries Committee. Based on these points, Congress passed the MMPA Amendments of 1988, which established an information gathering program and an Interim Exemption Program for Commercial Fisheries. After analysis of the Interim Exemption Program and after NMFS proposed a long-term regime to authorize incidental takes in commercial fisheries in 1993, the environmental community and the fishing industry met again. They developed amendments that resulted in sweeping changes to the MMPA's provisions governing the incidental take of marine mammals in commercial fisheries, which were adopted by Congress in 1994. Today, representatives of the fishing industry, the conservation community, and federal and state agencies continue their work through incidental take reduction teams to develop measures reducing the incidental mortality and serious injury of marine mammals in commercial fisheries. Part II of this Article explores the history of the MMPA and explains why this type of cooperative approach promises to be effective for marine mammal conservation. Part III examines the benefits of developing conservation strategies using facilitated negotiations versus traditional adversarial tactics, and how these strategies expedite efforts to reduce or eliminate marine mammal mortality in commercial fisheries. Part IV provides an update on the status of the implementation of the 1994 Amendments to the MMPA, and Part V evaluates the effectiveness of using take reduction teams to develop management strategies to reduce marine mammal incidental mortality and serious injury. Finally, this Article concludes by identifying areas of potential conflict between the fishing industry and the conservation community in the next reauthorization of the MMPA.



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