Last summer’s white shark attacks off Cape Cod beaches, one resulting in the first human fatality in the state in over 80 years, highlight the fact that times change, our marine ecosystem is evolving, and laws need to adjust to these changing realities. However tragic those shark attacks are for the victims and their families, the white sharks are not the issue; they simply dramatize it. The ever-increasing population of gray seals is the issue.
Gray seals obviously have a legitimate place in the natural system, which should be protected. At the time the Marine Mammal Protection Act was passed, 46 years ago, that law was needed and appropriate to protect marine mammals, including gray seals that had been all but extirpated. But in contrast to the Endangered Species Act that passed just a year later, the MMPA does not provide for delisting recovered species. Hence, gray seals are, in effect, legally protected in perpetuity, regardless of stock status, which is to say regardless of how many there are. This indefinite legal protection, irrespective of numbers, is arguably inconsistent with two of the principal metrics cited in the act, which are to achieve an “optimum sustainable population” consistent with “the carrying capacity of the habitat.”
Furthermore, the absence of a delisting provision is implicitly inconsistent with another of the act’s principal goals, which is the health and balance of the ecosystem at-large — to wit, does not the continued, indefinite legal protection of a dominant predator with few natural controls over its population raise questions about the impact on the health and balance of our marine ecosystem?
A realistic start to addressing this issue would be to amend the 1972 Marine Mammal Protection Act to provide for delisting recovered species, such as the gray seal. Admittedly, while delisting would not resolve the issues of controlling seal population growth or related white shark attacks, it would be a reasonable first step for the following reasons:
■ It would require the National Oceanic and Atmospheric Administration, the agency charged with administering and enforcing the Marine Mammal Protection Act, to address the question of when to delist and, toward that end, to finally assess the gray seal population stock in terms of the aforementioned criteria cited in the act; namely, “optimum sustainable population” and “carrying capacity of the habitat.”
■ It would shift NOAA’s focus from restoration of particular species to the health and balance of the marine ecosystem as a whole, taking into account the status of other marine species (such as our beleaguered cod fishery) with which gray seals coexist and compete for survival.
It has been argued that amending the Marine Mammal Protection Act to provide for delisting would somehow weaken the act. On the contrary, it would strengthen the law by recognizing and better aligning it with ecosystem-based management, a scientific concept that has greatly evolved since the MMPA was enacted. Delisting would not, in and of itself, jeopardize or impede gray seal recovery, and it would not sanction a return to hunting or culling seals. And if gray seals were delisted, a post-delisting monitoring plan could be prepared, as is the case under the Endangered Species Act, to ensure that the gray seal population remains viable and recovered.
NOAA should publicly acknowledge the success of the Marine Mammal Protection Act in restoring a viable gray seal population in the northwestern Atlantic. And Congress should amend the law to permit NOAA to celebrate that success by delisting gray seals and allowing NOAA to focus henceforth on ensuring a balanced and healthy marine ecosystem.
Peter Howell is a founding director of the Nantucket-based Seal Action Committee and a director of the Atlantic Salmon Federation.