153 



FATE OF PACIFIC DOLPHINS 

 THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION 



In a 156-page recommended decision on the 14-day hearings held on regu- 

 lations under the Marine Mammal Protection Act, Administrative Law Judge 

 Frank W. Vanderheyden accepted the statistics offered by Dr. William Fox, 

 Jr., a National Marine Fisheries Service (NMFS) scientist who painted a 

 rosy numerical picture of how dolphins could thrive while American tuna 

 boat captains killed 96,000 "incidental" to their pursuit of the tuna in the 

 Eastern Tropical Pacific in 1977. The decision was served January 17th. 



In proposed regulations published October 1, 1976, NMFS recommended a 

 greatly reduced quota — less than one third of the Judge's recommendation. 

 But industry fought bitterly and successfully to raise it to a figure greater 

 than the total kill of dolphins in 1976. Dr. Fox's testimony played a major 

 role in convincing Judge Vanderheyden, contrary to the official recommenda- 

 tions of the government or the Marine Mammal Commission established under 

 the Marine Mammal Protection Act. 



To get the flavor of the type of statistical bureaucratese which seems to 

 have tipped the scales against the dolphins a few excerpts from Appendix H 

 of the decision, Dr. Fox's supplemental statement, provided expressly for the 

 record, are given below : 



"Because of statistical uncertainties the 'true values', for which we have 

 estimates may actually lay (sic) above or below the estimates. For this 

 reason statistitions compute intervals about the estimates for which a state- 

 ment can be made that the 'tru^ values' lay (sic) within their intervals with 

 a certain level of probability. In order to make this statement, further as- 

 sumptions are made regarding the correct probability model for the statistical 

 uncertainties." 



Or later: "We are reasonably confident that the sustainable kill is not less 

 than this value in the same sense that we are reasonably confident that 

 either the population size or net reproductive rate is not less than two 

 standard errors below its estimate; this is a statistical convention." 



The Judge stated flatly that the dolphins' "protection is assured by those 

 levels of confidence recommended by Dr. Fox." (p. 86) 



Further, the Judge concluded, "based on the testimony of Dr. Fox" that 

 "the lower bound of optimum sustainable population is 50 percent of the 

 unexploited population . . ." (p. 73) Even the International Whaling Com- 

 mission uses 60 percent as the lower bound in computing its industry-oriented 

 quotas for killing the great whales ! The lower the percentage the more animal 

 deaths are "justified." 



With the dolphins at the mercy of this type of human cogitation, the outlook 

 is grim. However, there are certain elements in the Judge's recommended 

 decision (The Director of NMFS is the one who makes the final decision) 

 which have value, and some of these are quoted below: 



Five to six million dolphins killed 



"The estimated total mortality of spotted dolphin between 1959 and 1975 

 was between 3,271,00 and 3,938,000. For the same period, the estimated total 

 for the eastern spinner dolphin was between 1,501,000 and 1,848,000 and the 

 total mortality for the whitebelly spinner was approximately at 179,000." 

 (p. 23) (Totals including '76 kill 5,025,000 to 6,049,000). 



Hoiv the dolphins try to save themselves 



"Porpoise themselves apparently have developed techniques to reduce their 

 mortality. They have excellent memories with some schools being more alert 

 than others. Also the schools act differently according to areas. One method 

 they use to avoid being 'set on' is to disperse before the speed boats can 

 herd them. Another tactic is for a school to submerge together and stay under 

 the water as long as possible making their position difficult to determine and 

 a set impossible. The degree of memory, intelligence and evasive tactics used 

 is in direct proportion to the number of times they have been 'set on' and the 

 interval between sets. Tr. 2303, 2307-09, 2330. The evidence is persuasive that 

 a point can be reached where it is impossible to 'fish on' a particular school 

 of these mammals." (p. 28) 



