Marc A. Yaggi


The Marine Mammal Protection Act (MMPA) was enacted in 1972, in an effort to curb the increasing fatality rates of marine mammals that were caused, in part, by fishermen. Upon enacting the MMPA, Congress implemented a "taking" provision - the core provision - which prohibits the "take" of any marine mammal, with certain exceptions for commercial fishermen. A criminal case involving the "take" provision, United States v. Hayashi, charged David Hayashi, a non-commercial fisherman, with violating the MMPA by firing a rifle at porpoises that were chasing his tuna catch. The Ninth Circuit Court of Appeals reversed Hayashi's conviction, effectively extending a statutory exemption to non-commercial fishermen. Following upon the heels of the Hayashi decision, Congress passed an amendment to the MMPA allowing general deterrence measures to be used to protect one's gear, catch or property. Pursuant to the amendment, regulations were proposed to implement the amendment. This Article begins by reviewing the broad goals of the MMPA, followed by an examination of the holding in the Hayashi case. Further, the Article reviews and analyzes the relevant amendment and proposed regulations to the "taking" provision, concluding that the proposed regulations were written in unjustifiable haste and will result in undermining the goals of the MMPA, by increasing marine mammal injury and fatality rate, at the hands of fishermen.