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Federal “Taking a Marine Mammal” Law – 16 USC 1372(a)(2)

Posted by John Rogers | Jan 17, 2021 | 0 Comments

16 USC 1372(a)(2)[1] is codified under the Marine Mammal Protection Act – a federal regulation that protects mammals and their habitats. The law is aimed at preserving and sustaining wildlife populations. It imposes both civil and criminal penalties for those who violate this section. 

A violation of this section can occur in any one of the following ways:

  • Importing marine mammals;
  • Importing of Pregnant or nursing mammals;
  • Inhumane takings without consent from the secretary[2];
  • Domestic and international importing mammals defendant knows are illegally taken.

Generally, to be convicted of 16 U.S.C. 1372, the prosecutor must prove that the defendant knowingly, harassed, hunted, captured, or killed a marine mammal. It is a misdemeanor offense carrying up to one year of imprisonment and a one-year period of supervised release. A conviction also carries a fine up to $100,000 or twice the gross gain or gross loss resulting from the offense, whichever is greatest.

A defendant may assert a defense if the secretary has determined that importing the mammal is necessary for the protection or welfare of the animal. Additionally, if the defendant was part of a scientific group researching or aimed at enhancing the survival of the species, then the defendant did not violate the statute. Since the investigation consists of government agencies, a defendant can move to suppress evidence if the government violated the defendant's Fourth Amendment right.

Examples of taking a mammal in violation of United States federal law includes:

  • Killing an elephant seal off the coast of Monterey, California.

  • Transporting a marine mammal in an airplane without authorization.

  • Capturing a whale within United States waters.

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If you are under investigation for an environmental crime, then contact our office today to schedule a risk free consultation with an experienced federal criminal defense attorney. Environmental crimes are aggressively pursued by federal prosecutors and it may lead to jail time. Early representation can make the difference of serving a prison sentence or having your case rejected entirely from prosecution. Criminal violations of marine mammals in the United States are investigation by the National Oceanic and Atmospheric Administration, Office of Law Enforcement. Give us a call if you have been contacted by this federal agency.

Legal Footnotes:

[1] (a) Except as provided in sections 1371, 1373, 1374, 1379, 1381, 1383, 1383a, and 1387 of this title and subchapter V, it is unlawful—

(1) for any person subject to the jurisdiction of the United States or any vessel or other conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas;

(2) except as expressly provided for by an international treaty, convention, or agreement to which the United States is a party and which was entered into before the effective date of this subchapter or by any statute implementing any such treaty, convention, or agreement—

(A) for any person or vessel or other conveyance to take any marine mammal in waters or on lands under the jurisdiction of the United States; or

(B) for any person to use any port, harbor, or other place under the jurisdiction of the United States to take or import marine mammals or marine mammal products; and

(3) for any person, with respect to any marine mammal taken in violation of this subchapter, to possess that mammal or any product from that mammal;

(4) for any person to transport, purchase, sell, export, or offer to purchase, sell, or export any marine mammal or marine mammal product—

(A) that is taken in violation of this chapter; or

(B) for any purpose other than public display, scientific research, or enhancing the survival of a species or stock as provided for under subsection 1374(c) of this title; and

(5) for any person to use, in a commercial fishery, any means or methods of fishing in contravention of any regulations or limitations, issued by the Secretary for that fishery to achieve the purposes of this chapter.

(b) Importation of pregnant or nursing mammals; depleted species or stock; inhumane taking Except pursuant to a permit for scientific research, or for enhancing the survival or recovery of a species or stock, issued under section 1374(c) of this title, it is unlawful to import into the United States any marine mammal if such mammal was—

(1)

pregnant at the time of taking;

(2) nursing at the time of taking, or less than eight months old, whichever occurs later;

(3) taken from a species or population stock which the Secretary has, by regulation published in the Federal Register, designated as a depleted species or stock; or

(4) taken in a manner deemed inhumane by the Secretary.

Notwithstanding the provisions of paragraphs (1) and (2), the Secretary may issue a permit for the importation of a marine mammal, if the Secretary determines that such importation is necessary for the protection or welfare of the animal.

(c) It is unlawful to import into the United States any of the following:

(1) Any marine mammal which was—

(A) taken in violation of this subchapter; or

(B) taken in another country in violation of the law of that country.

(2) Any marine mammal product if—

(A) the importation into the United States of the marine mammal from which such product is made is unlawful under paragraph (1) of this subsection; or

(B) the sale in commerce of such product in the country of origin of the product is illegal;

(3) Any fish, whether fresh, frozen, or otherwise prepared, if such fish was caught in a manner which the Secretary has proscribed for persons subject to the jurisdiction of the United States, whether or not any marine mammals were in fact taken incident to the catching of the fish.

(d) Nonapplicability of prohibitions Subsections (b) and (c) of this section shall not apply—

(1) in the case of marine mammals or marine mammal products, as the case may be, to which subsection (b)(3) of this section applies, to such items imported into the United States before the date on which the Secretary publishes notice in the Federal Register of his proposed rulemaking with respect to the designation of the species or stock concerned as depleted; or

(2) in the case of marine mammals or marine mammal products to which subsection (c)(1)(B) or (c)(2)(B) of this section applies, to articles imported into the United States before the effective date of the foreign law making the taking or sale, as the case may be, of such marine mammals or marine mammal products unlawful.

(e) Retroactive effect

This chapter shall not apply with respect to any marine mammal taken before the effective date of this chapter, or to any marine mammal product consisting of, or composed in whole or in part of, any marine mammal taken before such date.

(f) Commercial taking of whales

It is unlawful for any person or vessel or other conveyance to take any species of whale incident to commercial whaling in waters subject to the jurisdiction of the United States.

[2] (i) the Secretary of the department in which the National Oceanic and Atmospheric Administration is operating, as to all responsibility, authority, funding, and duties under this chapter with respect to members of the order Cetacea and members, other than walruses, of the order Pinnipedia, and (ii) the Secretary of the Interior as to all responsibility, authority, funding, and duties under this chapter with respect to all other marine mammals covered by this chapter. (B) in section 1387 of this title and subchapter V (other than section 1421f–1 of this title ) the term “Secretary” means the Secretary of Commerce.

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John Rogers

*State Bar Board Certified Specialist in Criminal Law *Top 40 Under 40 by the National Trial Lawyers Association *Selected “Rising Star” by Super Lawyers Magazine *Federal Criminal Defense Representation Nationwide *Personalized Attention & 24/7 Accessibility

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