Gray seals no longer need federal protection

Jul 31, 2023

Sharks and seals deserve their place in nature. But the Marine Mammal Protection Act permanently protects marine mammal species, including gray seals, which have demonstrably recovered and no longer need protection.

Biodiversity loss is not simply about extinction; it’s about preserving a balance in nature. The protected population of gray seals on Cape Cod — and indeed, throughout the North Atlantic — threatens that natural balance with unexpected and problematic consequences.

The Marine Mammal Protection Act protects marine mammals indefinitely — in effect, in perpetuity, because the act does not contain a provision for delisting recovered species. Fifty years ago, when the law was passed, such protection was necessary. Gray seals had nearly disappeared, along with other marine mammal species, some of which remain threatened to this day, such as the North Atlantic right whale. Because of that act, gray seals have dramatically rebounded in the North Atlantic, most noticeably along the New England coast. That recovery, along with the equally dramatic appearance of white sharks, which are attracted by the now abundant gray seals, has been hailed as a great success and a sign of a healthy ecosystem.

And, no doubt, it has been a success. But when does success become excess? The Marine Mammal Protection Act does not address that eventuality. So long as gray seals remain protected, regardless of their numbers, they will continue to proliferate and attract white sharks.

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Some may say we should let nature take its course. Nature has three principal ways of controlling wildlife populations: predation, starvation, and disease. In the case of gray seals, there are two significant predators: sharks and orcas. In the waters off of Massachusetts, the white shark is its primary threat. It is neither realistic nor desirable in terms of public safety to rely on white sharks to control the seal population. Starvation implies further depletion of already stressed fisheries.

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That leaves disease. Gray seals are susceptible to a number of highly contagious and deadly pathogens such as avian influenza and morbillivirus (phocine distemper virus). While the risk of either spreading to humans is considered low, there is growing concern that climate change may increase the rate of pathogen mutation and the threat of animal-to-human contagion, particularly when there are high population densities, which occur during the seal breeding and molting seasons. Relying on a seal epidemic to control their population — or on predation or starvation — is not an enlightened wildlife population control policy.

The Marine Mammal Protection Act is critically important, but it needs to be amended to include a provision for delisting recovered species. The Endangered Species Act, passed just a year after the Marine Mammal Protection Act, contains such a provision. Why not the Marine Mammal Protection Act? Absent such a provision, the perpetual protection of gray seals will only increase our reliance on white sharks, the pressure on already depleted ground fisheries, and the eventuality that some virulent disease will control the gray seal population. Furthermore, as long as seals are legally protected, the responsible federal agencies have no incentive to officially declare that seals have in fact recovered and to consider what, if any, management measures may be appropriate to control their population. Their hands are tied by a law that protects seals regardless of their numbers. Indeed, the act is inherently inconsistent in setting as its goal the achievement of an “optimum sustainable population” while permanently protecting marine mammals irrespective of their population size.

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Finally, why spend taxpayer dollars protecting a species that has demonstrably recovered? Better to use that money to save right whales. The federal government should move from permanent protection, regardless of population size, to ecosystem-based stewardship that aims to sustain seals in their proper place and proportion in the natural world. Terrestrial wildlife populations, such as deer and wolves, are controlled in the interests of the larger ecosystem. Why not marine mammal populations?

Peter Howell, former chair of the Nantucket committee of The Trustees of Reservations, is a director of the Atlantic Salmon Federation.