The year 2012 might be remembered for many things – the re-election of Barak Obama, the legalization of marijuana, or the downfall of Lance Armstrong.  But it also was the year that some of our landmark environmental laws turned 40.   Here’s my end-of-year birthday homage to one of them.  It’s called:

Middle Aged Aquarius: The Marine Mammal Protection Act Turns 40

Laura Lyell carves through the filmy sack surrounding the heart and cuts the aorta to release it from the cavity.  The heart of a harp seal is unusually large she says – much bigger than it would be in a person of this size, or even other seals.  “Here’s the right atrium, the right ventricle, the left atrium and the left ventricle” she explains, pointing out the four chambers of the heart, textbook obvious in the large specimen in her hand.   Then she dives even deeper.  Slicing into the left ventricle, she pulls at a collection of thin strands that look almost like the strings of a musical instrument.  “And here,” she says, “are the heart strings.”

A former operating room nurse, Lyell spent 20 years bending over operating room tables in Florida trying to saving lives.  Now she bends over a stainless steel dissecting table in Bar Harbor, Maine trying to understand death:  namely, what killed this young seal.

Lyell is a volunteer with Allied Whale, part of the Northeast Region Marine Mammal Stranding Network, a collection of nonprofit organizations authorized under the Marine Mammal Protection Act to respond to animals in distress.  This year is the law’s 40th anniversary, marking four decades of protections for seals, sea lions, walruses, whales, dolphins, polar bears, sea otters and manatees.  Back in 1972 the Marine Mammal Protection Act was a groundbreaking conservation bill that passed Congress in record time and signed by Republican President Richard Nixon. But the national outcry that drove these protections into law has dissipated over the decades, and funding cuts may weaken its impact.  Lyell, for example, worries about the future of the Stranding Network — one small part of the Act but a key resource for rehabilitating injured animals.  The Obama Administration’s budget for 2013 eliminated federal matching grants for facilities and staff that support the program.  Congress reinstated the funds in a short-term spending bill that will carry the program for several months.  But its fiscal future remains uncertain.

“The circumstances in which the Act was born are so different from the way things operate today,” said Frank Potter in a recent telephone interview.  As Counsel for the House Subcommittee on Fisheries, Wildlife and the Environment, Potter drafted the bill that ultimately became law.   “There was enormous pressure brought by the people concerned about the Canadian harvesting of the harp seals” he said and concerned about dolphins drowning in tuna boat nets.

Environmentalism was coming of age at the time.  The first Earth Day had just occurred in 1970 with 20 million Americans participating in events around the country.  But even in such a fertile climate marine mammal conservation had an unusual pedigree:  it emerged from a strange convergence of 1950s Cold War research and 1960’s New Age hippie mysticism.  By the early 70’s, this unlikely marriage had spawned a movement that considered highly intelligent and social marine mammals to be a lot like people – only better.  For many people, the survival of marine mammals became more than an ethical issue.  It became synonymous with human survival.

The central matchmaker in this union was John Lilly, an M.D. and neuroscientist who started his research career at the National Institutes of Mental Health during the Cold War.  Using electrodes and other devices implanted in the brains of live monkeys, Lilly mapped brain activity by stimulating different areas of the brain and measuring the animals’ response.  His findings potentially could be used for human brainwashing and manipulation – a key national interest in the fight against Communism.  After a colleague told Lilly that bottlenose dolphins have unusually large brains he shifted his focus, plugging electrodes into dolphin brains instead of monkeys’ and measuring their response. In a life changing moment for Lilly, a particularly vocal dolphin in his lab made a strange human-like sound during an experiment.  With little actual evidence, Lilly concluded that the dolphin was mimicking the humans around it and trying to communicate.   Despite his limited data, he shared his revelation with skeptical colleagues at the annual meeting of the American Psychiatric Association in 1958, introducing the idea that dolphins were exceptionally intelligent animals potentially capable of sophisticated communication with people.  Newspapers across the country picked up his story and Lilly became a minor celebrity.  The dolphin – after excessive electrical stimulation in the lab — died.

Lilly theorized that dolphins and other large-brained cetaceans, such as sperm whales, could think and communicate in complex ways completely alien to people.  He speculated that their large brains, combined with sophisticated acoustic abilities and a carefree life in water, frees up mental space in dolphins and whales for “transcendental” experiences that people can only imagine – brain space that in people is devoted to the challenges of finding food, advancing technologies, and navigating cultural conventions.  Lilly quit his government job, moved to the Caribbean and started his own research facility, the Communications Research Institute, to figure out how to “think the way that dolphins do.”[1]  First relying on his own funds, and later supported by federal research grants (this time from the National Science Foundation, the Office of Naval Research and NASA) he began his new career as the scientist who talks with dolphins.

Lilly’s impact and celebrity grew in the 1960s. He published his popular book, Man and Dolphin; appeared on The Jack Paar Show, and was featured in Life Magazine.  His work influenced physicist Leo Sziland, author of the futuristic novel The Voice of the Dolphin (in which dolphins save the world from thermonuclear war), and inspired filmmaker Ivor Tors, creator of the 1963 movie Flipper.  Lilly’s second book, The Mind of the Dolphin, hit book stores in 1967.  In it, he reveals the unorthodox research taking place at his lab, including the experience of a young research associate who lived with a young male dolphin in a half-submerged apartment for two and half months trying to teach it English.  Years later, Lilly discussed how he used flotation tanks and LSD as other tools to help free his mind and relate to the dolphin experience.

Lilly believed that by communicating with dolphins, humans could learn to communicate with each other better and become prepared to communicate with extraterrestrials in the future.  He characterized dolphins as polite and selfless creatures, compared to man and our capacity for selfishness, self-destruction and violence. And he struck a nerve by proposing that dolphins and whales be treated with the same principles of compassion and humanity that humans ostensibly afford each other.

Others soon picked up the thread.  In A Whale for the Killing author Farley Mowat wrote of a fin whale trapped in a Newfoundland cove, and how deeply her plight moved him:

“So long as I live I shall hear the echoes of that haunting cry.  And they will remind me that life itself – not human life – is the ultimate miracle upon this earth.  I will hear those echoes even if the day should come when none of her nation is left alive in the desecrated seas, and the voices of the great whales have been silenced forever.”[2]

Astrophysicist Carl Sagan joined Lilly and other scientists to form the Order of the Dolphin and explore how to detect extraterrestrial life.  Sagan later wrote:

“It is at this point that the ultimate significance of dolphins in the search for extraterrestrial intelligence emerges.  It is not a question of whether we are emotionally prepared in the long run to confront a message from the stars.  It is whether we can develop a sense that beings with quite different evolutionary histories, beings who may look far different from us, even ‘monstrous,’ may, nevertheless, be worthy of friendship and reverence, brotherhood and trust.”[3]

Amid fears of thermonuclear war and the accompanying desire for peace, love and harmony in the universe, some saw salvation in cetaceans.

The Navy saw salvation of a different kind.  In 1963 it opened a marine mammal research institute at Point Mugu, California.  There, it studied whale communication, dolphin sonar, sea lion health and more, and explored using these animals for military purposes. Although many of Lilly’s claims remain unproven, the Navy’s work, and that of other scientists, backed Lilly’s assertion that marine mammals are highly intelligent animals with sophisticated communication.   In 1971 scientists Roger Payne of Rockefeller University and Scott McVay of Princeton reported in the prestigious journal Science that they had recorded vocalizations of humpback whales that were actually songs, describing them as “a series of notes … uttered in succession and so related as to form a recognizable sequence or pattern in time.”[4]  Capitol Records released an album using Payne’s whale recordings in 1970, called Songs of the Humpback Whale. And shortly thereafter recording giants such as Judy Collins and Paul Winter incorporated the whale’s haunting, otherworldly songs into their music.

The idea that whales and dolphins were somehow portals to a better world resonated with people, particularly with the growing counterculture of the 1960’s and 70’s.  With their complex communication, apparent intelligence, and social nature, whales and dolphins seemed to have achieved a free-spirited harmony that eluded human society.  Conservation groups capitalized on this convergence of science and spirit.  Defenders of Wildlife and other national conservation groups, publicized the slaughter of whales, their possible extinction and the continued importation of whale products into the U.S.  News stories sympathized with Flipper-like dolphins that struggled to escape the huge nets deployed by tuna fleets and drowned in the process.

But photos of Canadian hunters clubbing baby harp seals may have been the most compelling tool for mobilizing the public.  The big black eyes and impossibly white fur of helpless baby seals pulled on people’s heart strings and moved them to action.  America was riveted, and the letters poured into Congress.

All of that angst and awe landed on Frank Potter’s desk in 1971.  It was Potter’s job to give Chairman John Dingell (D-MI) what he wanted: a bill that would respond to the public outcry and protect marine mammals. Other bills had been introduced – most of them seeking an outright ban on all marine mammal killing.  But Dingell wasn’t interested in a total ban, considering it a simplistic solution to a complex problem.  So Potter sought technical advice and expertise from biologist G. Carleton Ray at the Smithsonian Institution.

Ray argued for species management that allowed flexibility to reduce populations, if necessary, based on ecosystem health– a new concept at the time.  Under this approach, marine mammals could be taken by permit after extensive public input if the governing agency determined that doing so wouldn’t harm the population or its ecosystem.  In four days of hearings in September 1971, the subcommittee heard testimony from scientists and conservation groups such as the National Wildlife Federation and Izaak Walton League supporting the management approach, and from animal welfare groups such as the Fund for Animals and the Friends of Animals supporting a complete ban instead.  Some of these so-called “protectionists” called killing any marine mammal immoral, citing Lilly’s work and Payne’s recordings as evidence.   But the question was never if marine mammals should be protected.   The only question was how. Given public sentiment, doing nothing was not an option.

In the end, the management approach made more sense to a plurality of House members. By writing a bill that focused on management and not outright bans, the committee was able to produce sweeping legislation that flew through the House and Senate and was signed by President Nixon on Oct. 21, 1972, little more than a year after the first congressional hearings.  “It was a remarkably rapid development,” said Potter.  “Congressional action doesn’t usually happen that fast.”

The harp seal on Lyell’s dissecting table this past summer in Bar Harbor, Maine wasn’t bludgeoned as a baby by hunters on Arctic ice.  It was found dead on a pier in Ellsworth, Maine by local residents who called Allied Whale, part of the Stranding Network, to come investigate.  “I have people calling me because they can’t sleep at night” worried about a seal they see on an ice floe, said Stranding Coordinator Rosemary Seton.   Even when an animal is okay, people worry that it’s not.

Lyell understands that passion – it’s what keeps her committed to Allied Whale.  When she first started volunteering she went out on assessments:  responding to stranding calls and determining whether the animal was hurt and needed care, or whether it simply had hauled out on the beach, as seals often do.  Over time, she ended up playing a leading role in dissecting dead animals to help determine the cause of death.  The dissections – called necropsies — were a natural fit with her nursing background.  “We’re mammals,” she said a few days after the seal necropsy.  “The anatomy is very similar.”   In the winter, she vacations at a whale preserve in the Dominican Republic where she can swim with humpback whales and their calves “on their terms,” as she puts it.  But doing so remains controversial among conservationists.  Under the Marine Mammal Protection Act swimming with whales is illegal in US waters.  Regulations require that people keep their distance so that their presence won’t disrupt normal whale behavior.  Because of this, Lyell kept this part of her life secret from her colleagues for a while.   But each year she’s drawn back.  “They look at you,” she says with a long pause. “It’s something that I can’t really put into words.”

Lyell and her colleagues never figured out what killed that young harp seal.  Its heart looked healthy and strong, as did everything else.   But they forwarded the data they collected to the National Oceanic and Atmospheric Administration anyway, to join the larger national database piecing together how marine mammals live and die.

Without continued federal funding, the stranding program at Allied Whale will lose most of its support, much of its capacity to help injured animals and the ability to detect emerging lethal threats.  Their struggle offers a glimpse into the broader ongoing effort to protect marine mammals.  Much of that effort focuses on reducing marine mammal deaths from fishing gear, ship strikes, and motorboats – some of the greatest threats today.   Fewer dolphins are killed by tuna fleets than in 1972, but reducing this catch further remains a contentious issue.  Harp seal skins cannot be imported into the United States, but hunting remains legal in Canada.  Other marine mammal populations remain below optimum levels mandated under the Act and some, such as the North Atlantic right whale, are critically endangered.  Despite 40 years of protection, the right whale population remains at less than 400 individuals, threatened by ship strikes and entanglement in fishing gear.  At those levels, each animal matters.

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