50 years ago, President Nixon signed the Marine Mammal Protection Act into law. The act has been hugely successful in restoring the abundance of the marine species it protects. But some say it’s too successful.
Tribes in particular say their treaty rights to fishing are under threat because now, too many seals and sea lions are feasting on endangered salmon.
Not far from the banks of the Puyallup River near Tacoma, tribal elder Ramona Bennett sits outside her house, lamenting the state of the salmon runs in her home waterway. The recent dumping of Astroturfinto the Puyallup by a dam operator is top of mind.
But there’s something else that’s bothering her: a class of animals that for fifty years have enjoyed more protection under U.S. law than almost anything else.
“One seal will tear the bellies out of 40 salmon, in a day -- just the bellies– just eat the belly,” Bennett said. “And they're terrible. They're like packs of wild sea dogs. And then those sea lions, I call them sea buffaloes.”
She said they compete with tribal fishermen for increasingly scarce salmon. And their numbers have only grown under the Marine Mammal Protection Act, which prohibits hunting and anything else that might harm them.
“And they were all on our menus. We used to trade them and harvest them, eat them, sell their meat,” she said.
A pioneering activist who went on to become chairwoman of the Puyallup Tribe, Bennett wants to revive a tribal hunt, to harvest seals and sea lions on at least eight local rivers. She said they should throw a big public feast with other tribes, even though that would be illegal.
”And let them arrest us,” she said. “We'll never resolve this through legislation, it'll have to be through litigation, which is clearer and quicker.”
Bennett’s vision for a rebellious feast has not yet been realized, but she has lots of allies.
This year the Northwest Indian Fisheries Commission published a column, calling seals and sea lions invasive species allowed to go out of control under the Marine Mammal Protection Act. During the four decades from 1975 to 2015, harbor seal numbers in the Salish Sea increasedfrom 5,900 to 47,000 and California sea lions' numbers rose as high as 300,000 on the west coast of the U.S., the column notes.
The NWIFC represents more than 20 tribes who say their treaty rights to fish are being undermined – by the conservation success of this law.
Federal agency sees the act as ‘largely successful’
NOAA Fisheries is the federal agency that oversees protected species management under the law. At the 50 year mark, NOAA credits the legislation with improving scientific research, conservation and facilitating population recovery.
"The Marine Protection Act is very protective – hence its name,” said Chris Yates, an assistant regional administrator for NOAA Fisheries based in Long Beach, California.
“It is very restrictive and it protects all marine mammals in the United States. That was what it was intended to do 50 years ago,” he said. “It's been largely successful at seeing significant rebounds in marine mammal populations.”
Species that were hunted to the brink of extinction have bounced back. Yates said NOAA Fisheries is aware of the problem of seals and sea lions preying on endangered salmon, both on the Columbia River and in Puget Sound.
The agency is studying the scope of the problem and working to understand it, especially since endangered Southern Resident killer whales are also suffering from a lack of salmon.
But the law is clear. It requires the regulators to maintain marine mammal species at the maximum number the ecosystem can support.
“What these protective acts regulate is human activity. They regulate the taking of those animals. They don't regulate the animals taking each other,” Yates said.
And unlike the Endangered Species Act, which allows species that have recovered to be de-listed, the Marine Mammal Protection Act requires complex permitting through waivers for any legal “take” of the animals it protects. These waivers can take years or even decades to get.
“The ecosystem is out of balance”
On the Nisqually River, near Olympia, you can see the effects of the Marine Mammal Protection Act playing out.
Willie Frank III maneuvered his boat to the mouth of the river, where hundreds of harbor seals have hauled out. They scooted to the water’s edge as they heard him approaching.
“Yep. See? There they go. They're scootin’,” he said.
Frank is chairman of the Nisqually Indian Tribe. He’s the son of the late Billy Frank, Jr. who led the fishing protests in the 1960s and '70s that secured tribal treaty fishing rights in Washington. But those rights are threatened by hungry seals. When the tide goes up, the seals follow the fish upriver, for miles.
“I mean, these are areas where they never used to come. They wouldn't come up to the I-5 bridge, but now they go well past that,” he said.
And when fishermen are out on the water, the seals head straight for their nets and grab at them for fish. Often, the seals get caught.
“They'll get in our net,” he said, “they'll take bites out of the fish.”
That ruins the harvest; the fishermen have to toss the remains back into the water. They’re allowed to shoot them when this happens, but Frank said he’s never done that. Instead, many fishermen will wait by their nets, immediately retrieving any fish that are caught, to keep seals from getting them.
Frank said the sea lions are worse. They’re huge – over a thousand pounds each. Hundreds of them come to the Nisqually every year and hit the fishermen’s boats, going after their salmon.
“I think the ecosystem is out of balance. You know, I've been fishing for 20 years and I'm seeing every day the lack of salmon coming back to the river. I mean, we used to catch 200-300 fish Sunday and Monday during King season,” Frank said. “We're lucky to catch 100 fish now, the whole season."
He’s also never caught a steelhead here. Nisqually Chum and Chinook are suffering too, despite millions spent in recent decades on salmon habitat restoration and hatcheries to boost salmon recovery.
WDFW studying seal and seal lion diets
More than a hundred miles to the north, scientists with the Washington Department of Fish and Wildlife are trying to measure the effects of seals and sea lions on endangered salmon in Puget Sound.
Casey Clark is the lead marine mammal researcher for the agency. They’ve got a pilot project on the Stillaguamish River, where two populations of Chinook salmon are critically threatened.
Aerial surveys here have counted 400-500 seals living in the bays at the mouth of the river, near Stanwood. But only a handful have been spotted chasing fish upstream.
“What we have found thus far is that in the couple of years we've been looking at the Stillaguamish River, it doesn't seem like the seals are having a really big impact on adult Chinook,” he said.
Clark stood at the diversion dam and fish ladder, with several large salmon jumping in the background. He said they’ve had a total of maybe four sightings of seals there, in a year and a half, where they thought there might be far more.
His team is trying a variety of techniques, including genetic analysis of scat, to calculate how many adult salmon the seals eat – as well as how many juveniles they eat (which can have a larger overall impact on the fish populations.) But he said each fish run is unique.
Any action to substantially reduce predators in Puget Sound would need to be tailored to each individual river. And at this point, Clark said his team does not have enough information to make good decisions.
“I know that when humans go and try to pull the levers of an ecosystem to reach a desired outcome, historically we haven't been phenomenally good at reaching the outcome we want without unintended consequences,” he said.
Later this month, state wildlife officials are expecting a report back on the issue from the Washington State Academy of Sciences. Clark hopes for some recommendations on how to manage seals and seal lion populations – much like the recommendations from Gov. Jay Inslee’s orca recovery task force that the state has been acting on.
A more comprehensive report from WDFW on predation by seals and seal lions in Puget Sound is expected by next summer.
A demand for more flexible regulations
However, all of this regulatory process is far too rigid for many tribes. And it leaves tribal treaty rights hanging in the balance.
At a recent symposium at the University of Washington on indigenous foods and ecological knowledge, Makah carver and former tribal chairman Micah McCarty sat sanding wood, as he discussed policy in a small group.
“It needs to be more like a working document. It can't be a cut in stone, because when the Marine Mammal Protection Act was put in place, the ecology of the planet was way different than it is now,” McCarty said.
He said it’s time to break through what he calls "paralysis by analysis" and "passive aggression" from the federal government. He liked Ramona Bennett’s idea of reviving a tribal hunt on seals and sea lions.
“I want to sit in a casino with a cigar on a sea lion skin. You know, the cigar lounge up at Snoqualmie needs a bunch of sea lion upholstery,” he said with a laugh.
Of course, that would be after eating a scrumptious meal of seal and sea lion meat, harvested locally.
Indigenous groups in Canada’s west coast First Nations have also been campaigning for a revived hunt since 2019.