Petition filed to list local orcas as endangered species

Three local groups joined the Arizona-based Center for Biological Diversity in issuing a "May Day" for local killer whales yesterday. A petition, formally requesting the Southern Resident killer whale population be listed as an endangered species under the federal Endangered Species Act, was filed with the National Marine Fisheries Service (NMFS). The Whale Museum, Orca Conservancy and the Friends of the San Juans were co-petitioners. As an alternative, the petition asks for the whales to be listed as an endangered species.

Over-fishing, pollution, whale-watching vessels and the small population size are cited as concerns in the 108-page petition. The petition is available on the CBD's Web site. The non-profit organization is dedicated to protecting endangered species and wild places of western North America and the Pacific.

The petition states:

This petition seeks to list the Southern Resident killer whale, Orcinus orca, as an endangered species under the Endangered Species Act. The Southern Resident killer whale has experienced alarming population instability over the past 30 years, indicating that the population is unsteady and oscillating toward extinction. Currently the population is experiencing a population decline that is incomparable to any previous population fluctuation in the Southern Residents’ known history, and it is now considered the most endangered killer whale population in the world.

The Southern Residents’ extinction trajectory has been caused by several anthropogenic factors. During the late 1960s and early 1970s, approximately 34 Southern Residents were captured and removed for display in aquaria; perhaps a dozen more Southern Residents were killed in the process of capture (Olesiuk et al., 1990). These captures altered the sex and age ratio of the Southern Residents, creating a reproductive gap that led to population declines in the 1980s. Concentrations of organochlorines in Southern Residents have recently been determined to be greater than levels at which harmful effects have been documented in other marine species.

The contamination may be affecting the survivability of the population. Chinook salmon stocks—the Southern Residents’ main food source—have been declining throughout the Pacific Northwest due to over-harvesting and destruction of salmon habitat. The reduction of this food source may be reducing the carrying capacity of the Southern Residents’ historical range, and may be enhancing the effects of bioaccumulated toxic chemicals. Disturbances caused by whale- watching and shipping vessels are also a likely factor in the Southern Resident killer whale’s decline. Vessel traffic can affect individual whale behavior and lead to fatal collisions with ships.

More information is available on the Center for Biological Diversity Web site.

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County to draft local regulations to save whales from harassment

Keeping boats from approaching too closely to killer whales has depended on voluntary compliance, educational brochures and the work of Soundwatch. A new tool may be on the way. The county prosecutor has been directed to draft an ordinance which would make it a violation to harrass orcas.

Prosecutor Randy Gaylord had advised the council the county did not have the authority to do so at previous meetings.

Yesterday, (May 15, 2007) at the council meeting on Lopez Island, Melanie Rowlins, a NOAA attorney, speaking on behalf of herself and a several other attorneys, said such a regulation would be "helpful from a conservation standpoint. "As far as a conflict between the Endangered Species Act and the Marine Mammal Act preventing local regulations, she said, "Congress has spoken to this issue. With respect to ESA, wherever a conflict between ESA and MMPA, the stricter of the two prevail."

Regarding using current federal regulations to stop the harrassment of whales, Gaylord said his office reviewed video last year which allegedly showed a boat powering through a pod of whales. His office considered filing charges but decided it was better to have the feds do it.

Rowlins said, "We have to go all the way through the Department of Justice for enforcement action. I don't think you'll see it."

Russ Mullins, the Dept. of Fish and Wildlife sergeant in charge of the Puget Sound division has been working in San Juan Island engaged in the marine mammal outreach. His program is grant funded through NOAA. He currently doesn't have the ability to take enforcement action. Asked by Councilmember Alan Lichter if a local ordinance would help, he said it would.

The draft ordinance will come before the council. Once they approve the draft, it will go out for public hearing before possible adoption.

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Local orcas listed as endangered

PRESS RELEASE: The southern resident killer whales have been listed as an endangered species under the federal Endangered Species Act. The National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA Fisheries Service) announced the listing Tuesday, Nov. 15, 2005. The listing will require federal agencies to make sure their actions are not likely to harm the whales. NOAA Fisheries Service said its ongoing efforts to restore salmon stocks in Puget Sound should benefit the whales. Other federal agencies’ efforts are likely to focus on toxic chemicals and vessel traffic.

A year ago, the whales were proposed for "threatened" status under the ESA. A species listed as threatened is at risk of becoming endangered; an endangered species is one at risk of extinction.

"Recent information and further analysis leads our agency to conclude that the Southern Resident killer whale population is at risk of extinction, and should be listed as endangered, " said Bob Lohn, regional administrator for NOAA Fisheries Service’s Northwest region. "By giving it protection under the ESA, we have a better chance of keeping this population alive for future generations. "

The Southern Resident killer whale population experienced a 20 percent decline in the 1990s, raising concerns about its future. Many members of the group were captured during the 1970s for commercial display aquariums.

The group continued to be put at risk from vessel traffic, toxic chemicals and limits on availability of food, especially salmon. It has only a small number of sexually mature males. Because the population historically has been small, it is susceptible to catastrophic risks, such as disease or oil spills.

Southern Resident killer whales already are protected, as are all marine mammals, by a 1972 law, the Marine Mammal Protection Act, under which the whales were officially listed as a depleted stock more than two years ago. A proposed conservation plan required by the depleted designation was published last month laying out the steps needed to restore the population to full health.

The population peaked at 97 animals in the 1990s and then declined to 79 in 2001. It currently stands at 89 whales, including a solitary male that has taken up residence in a small inlet in British Columbia.

Although researchers have collected more than 30 years’ worth of information on the Southern Residents, agency biologists said there are major gaps in knowledge, such as where the animals go when they’re not in local waters. Because killer whales may live up to 90 years in the wild, existing data doesn’t cover even one full life span for older animals. Research by NOAA Fisheries Service scientists to fill these gaps will continue, the agency said.

NOAA Fisheries Service is dedicated to protecting and preserving the nation’s living marine resources and their habitats through scientific research, management and enforcement. NOAA Fisheries Service provides effective stewardship of these resources for the benefit of the nation, supporting coastal communities that depend upon them, and helping to provide safe and healthy seafood to consumers and recreational opportunities for the American public.

The National Oceanic and Atmospheric Administration, an agency of the U.S. Commerce Department, is dedicated to enhancing economic security and national safety through the prediction and research of weather and climate-related events and providing environmental stewardship of the nation’s coastal and marine resources. Through the emerging Global Earth Observation System of Systems (GEOSS), NOAA is working with its federal partners and nearly 60 countries to develop a global monitoring network that is as integrated as the planet it observes.

Killer whales will be protected as Endangered

PRESS RELEASE: The National Marine Fisheries Service (NMFS) today proposed to protect Puget Sound’s Southern Resident killer whales under the federal Endangered Species Act, the nation’s strongest conservation law. The orcas declined by 20% over five years during the 1990s, and Endangered Species Act protection ensures that NMFS will have the world’s best conservation tools at its disposal as work begins to recover the whales from the brink of extinction.

"This is a victory for sound science, the killer whales, and the people of the Pacific Northwest," said Brent Plater, attorney with the Center for Biological Diversity. "However, if Congress continues on its path to gut the Endangered Species Act, the best tools available to protect the killer whale will be ripped right out of the hands of the scientists and resource managers in the Pacific Northwest."

Today’s decision comes nearly two years after a U.S. District Court found unlawful the Bush administration’s June 25, 2002 announcement that the killer whales are not significant enough to protect. The final rule differs from the proposed rule announced nearly one year ago by listing the Southern Residents as "endangered" rather than "threatened." An "endangered" listing provides stronger, more immediate protections to the killer whales than a "threatened" listing.

"Southern Resident killer whales have been integral to the ecological, social, and economic well being of the Pacific Northwest for nearly all of human history," said Plater. "Providing the Southern Residents the protections of the Endangered Species Act ensures that we can give back to these whales and insure their survival."

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Federal Court restricts global deployment of Navy sonar

PRESS RELEASE: A federal judge ruled August 26, 2003 that the Navy's plan to deploy a new high-intensity sonar system violates numerous federal environmental laws and could endanger whales, porpoises and fish. In a 73-page opinion, U.S. Magistrate Judge Elizabeth Laporte barred the Navy's planned around-the-world deployment and ordered the Navy to reduce the system's potential harm to marine mammals and fish by negotiating limits on its use with conservation groups who had sued over its deployment.

The sonar system, known as Surveillance Towed Array Sensor System Low Frequency Active sonar (or LFA), relies on extremely loud, low-frequency sound to detect submarines at great distances. According to the Navy's own studies, LFA generates sounds up to 140 decibels even more than 300 miles away from the sonar source. Many scientists believe that blasting such intense sounds over large expanses of the ocean could harm entire populations of whales, porpoises and fish. During testing off the California coast, noise from a single LFA system was detected across the breadth of the North Pacific Ocean.

"Today's ruling is a reprieve not just for whales, porpoises, and fish, but ultimately for all of us who depend for our survival on healthy oceans," said Joel Reynolds, senior attorney and director of the Marine Mammal Protection Project at NRDC, the lead plaintiff and counsel in the case. "The decision recognizes that both national security and environmental protection are essential. It recognizes that during peacetime, even the military must comply with our environmental laws, and it rejects the blank-check permit that would have allowed the Navy to operate LFA sonar virtually anywhere in the world."

In her ruling, Judge Laporte found that a permit issued to the Navy by the National Marine Fisheries Service to deploy LFA sonar violates the Marine Mammal Protection Act (MMPA), the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) because it did not adequately assess or take steps to mitigate the risks posed by the system to marine mammals and fish.

Judge Laporte found that, "endangered species, including whales, listed salmon and sea turtles will be in LFA sonar's path. There is little margin for error without threatening their survival…Absent an injunction, the marine environment that supports the existence of these species will be irreparably harmed."

In October, Judge Laporte granted a request by conservation groups for a temporary injunction to restrict deployment under the permit. Today's ruling orders the Navy to negotiate with NRDC and its co-plaintiffs on terms of a permanent injunction that would limit where, when and how the Navy can use LFA for testing and training. The injunction wouldn't prevent the Navy from using the system during war or "heightened threat conditions," as determined by the military.

Scientists have been increasingly alarmed in recent years about undersea noise pollution from high-intensity active sonar systems, which have been shown to harm and even kill whales and other marine life.

The mass stranding of multiple whale species in the Bahamas in March 2000 and the simultaneous disappearance of the region's entire population of beaked whales intensified these concerns. A federal investigation identified testing of a U.S. Navy mid-frequency active sonar system as the cause. Last September, mass strandings occurred in the Canary Islands as a result of military sonar, and in the Gulf of California as the likely result of an acoustic geophysical survey using extremely loud air guns.

Most recently, more than a dozen harbor porpoises were found dead on the beach near the San Juan Islands soon after the Navy tested active sonar in the Haro Strait in May. Videotape shows a pod of orca whales in the foreground behaving erratically as the Shoup, a U.S. Navy vessel, emits loud sonar blasts. Recent tests on one of the harbor porpoises revealed injuries consistent with acoustic trauma.

"The science is clear -- intense active sonar can kill whales, porpoises and fish," said Naomi Rose, a marine mammal scientist with the Humane Society of the United States, one of the co-plaintiffs. "The Navy must find ways to test and train with the LFA system that do not needlessly damage marine life."

"The public has a strong interesting in minimizing, as much as possible, any disruption or injury to these creatures from exposure to the extremely loud and far-traveling naval sonar system," Judge Laporte wrote in her opinion. "Public concern has been heightened by incidents where exposure to another kind of Navy sonar has led to lethal strandings of whales on the beach, as in the Bahamas in 2000."

"The court properly ruled that the permit to deploy the LFA system violates federal law," said Andrew Sabey, a partner with the international firm of Morrison & Foerster, which is representing the plaintiffs NRDC, the Humane Society, the League for Coastal Protection, the Cetacean Society International, and the Ocean Futures Society and its president, Jean-Michel Cousteau.

"The marine environment is an invaluable resource that we all must share," said Jean-Michel Cousteau. "I am very pleased that good sense has prevailed. The court has taken an extremely valuable step to protect a part of our life support system from destruction."

The Natural Resources Defense Council is a national, non-profit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 550,000 members nationwide, served from offices in New York, Washington, Los Angeles and San Francisco.

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Cause of porpoise deaths remains uncertain

No definitive evidence linking the deaths of 11 harbor porpoises to a May 2003 U.S. Navy sonar exercise in Haro Straight has been found according to a preliminary scientific report. UC Davis wildlife veterinarian Joe Gaydos of Orcas Island was one of the authors of the report released Feb. 9, 2004. Gaydos said the investigation was difficult because some of the carcasses were rotting when they were collected.

"Additionally, we need to know more about the effects of mid-range sonar on marine mammals' hearing systems," he said. The panel did find signs of illness or injury in some of the porpoises' ears, he said. "But we aren't able to distinguish damage caused by sonar from damage caused by other agents, such as decomposition."

The porpoise carcasses underwent a variety of studies, including high-resolution computer tomography (CT scanning) and tests for chemical toxins, diseases and parasites. The scientific team then analyzed that data to establish a possible cause of death for each animal.

The team declared a cause of death for only five of the porpoises. Two had died of "blunt-force trauma," which could include ship strikes or natural injury from coming ashore or being struck by another animal. The other three likely died of peritonitis, a bacterial infection (salmonellosis) and pneumonia.

The team said it could not find evidence of acoustic trauma in any of the animals but cautioned that lesions "consistent with acoustic trauma" can be difficult to interpret in decomposed animals. It said the possibility of acoustic trauma exacerbating or compounding the conditions that it found "cannot be excluded" in any of the animals.

Gaydos and 13 other scientists were asked to investigate after 14 porpoises stranded and died just before and after a U.S. Navy guided missile destroyer, the USS Shoup, conducted sonar exercises in Haro Strait. The scientists included veterinarians, pathologists, biologists and an expert in porpoise ear anatomy.

Gaydos is staff veterinarian for U.C. Davis Wildlife Center's SeaDoc Society which has offices and laboratories on Orcas Island. SeaDoc Society focuses on the marine wildlife and ecosystem of the Pacific Northwest.

For the past several years Gaydos and Richard Osborne, research director of The Whale Museum in Friday Harbor, have investigated the death of every marine mammal found dead on the shores of San Juan County. The area has more than a dozen different species of marine mammals, including orcas, harbor porpoises and harbor seals.

The 60-page preliminary report which is available online at the National Oceanic and Atmospheric Administration http://www.nwr.noaa.gov/mmammals/cetaceans/necropsypage.htm was released Feb. 9, 2004 for scientific review. A final report is expected in April, 2004.

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Project Haro to be First Study On Killer Whale Deaths

University of Washington scientists and the non-profit Orca Relief Citizens' Alliance (ORCA) are teaming up to help answer the question of why the local killer whale population is declining. This is the first research project to explore the cause of the recent increase in mortality among the Southern Resident Population of killer whales. The population has lost just under one-fifth of its whales in a straight-line decline beginning in 1995.

All initial work on ORCA's "Project Haro" will be done by University of Washington scientists at the School of Fisheries, and administered through the U.W. Friday Harbor Laboratories. The purpose of this first phase will be to perform a thorough review and analysis of existing scientific data on potential threats to local whales. ORCA is providing the funding.

"We anticipate that one of the primary results of this effort will be to identify where future research should be targeted, either because of promising existing data, or a lack of scientific information where it is most needed," said Mark Anderson, Executive Director of Orca Relief.

The cooperative venture grew out of discussions between Anderson and Friday Harbor Laboratories Director, A.O. Dennis Willows. The project will be led by Department of Fisheries Researcher Dr. Glenn VanBlaricom and graduate student Carlos Alvarez.

Technical description of this work:
The population of Orcas known as the Southern Resident Community of Orcas has declined in the last four years. This observation and potential explanations were discussed in a workshop held at the National Marine Mammal Laboratory.

Four main alternatives were discussed:

1. There is no external effect and the observed decline can be explained in terms of the natural dynamics of the population in its interaction with the environment;

2. There has been a shift in environmental quality potentially represented by a decline in the abundance of the orcas’ favorite prey items that include different salmon species;

3. There has been a considerable increase in the number of whale watching boats in the region and this may impose an unusual level of stress in the animals;

4. Contaminant levels in the bodies of Orcas from the SRC are of the highest for marine mammals worldwide.

"The present project will continue on the development of the research priorities defined in the workshop and will attempt:

1. to create an alternative population model that can lead to a better understanding of the population dynamics and,

2. to establish quantitative relationships between potential causal factors of changes in Orca abundance."

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Whale studies are conjectural

Recent media stories, based on a June 1 press conference, implicate whale watch boats as the cause of the recent losses in the Southern Resident orca community. "Based on the research that we're releasing today, the primary cause of orca deaths appears to be boats," said Orca Relief. According to Brian Gorman, a spokesman for the National Marine Fisheries Service, these reports were conjectural. No evidence was provided to support the claim and there has been no independent peer review of the studies.

More reliable studies indicate that the orcas need clean, uncontaminated water and plentiful fish. While any boat traffic around whales must be respectful and non-intrusive, far more serious factors leading to mortality among the Southern Residents are the historic decline in salmon needed for the whales' sustenance, and long-term health damage due to persistent, accumulating pollutants such as PCBs.

Field research data presented by Dr. Rich Osborne of the Whale Museum shows that the population of the Southern Resident Community reached its highest peak at the same time the number of whale watch boats reached its highest peak. After 12 years of observation of boat/whale interactions, Dr. Robert Otis also found that the increase in boat numbers correlated with an increase in whale numbers along the west side of San Juan Island.

Ken Balcomb, founder and director of the Center for Whale Research, has studied the Southern Resident Community since the mid-70's. He has observed several periods when boat traffic was severe, and yet the whales did not decline in number. The captures of the 60's and 70's, the intense purse seine fishing through the early 90's, and the regular appearance of the orcas in Seattle during Sea Fair, when Puget Sound was filled with boat traffic including hydroplanes, all seemed to have no impact on the orca population.

According to Balcomb "We know from killer whale biopsies and necropies in recent decades that their blubber tissues contain elevated levels of lipophilic toxic substances, notably poly-chlorinated biphenyls (PCBs)." Balcomb cites the fact that J18, a young male who died early in his maturity, lacked immunity to common diseases and his sperm count was zero.

Though PCB levels have generally declined slightly in Puget Sound since they were banned in the 70's, they continue to accumulate over decades in long-lived mammals such as orcas, and are passed on to the young through the placental wall and in mother's milk. Present orca generations carry loads that may have begun to accumulate in their mothers' bodies even before they were born.

Of the three resident pods, L pod has lost the most members during the past six years. L pod is also the least "watched" pod, as it spends less time in inland waters than J or K pods. Also, the capture of 45 whales and the death by drowning of several others from this community in the 1960's and '70's removed nearly half of the population, leaving a ten-year gap in the number of mature/reproductive whales in the current generation.

Though the charges stated in the press conference were directed at commercial whale watch boats, any impacts on the whales from vessels would more likely be from private/recreational boaters who don't see the whales or know how to behave around them. Heavy freighter, tanker, and military vessel traffic year-round emits engine noise far louder than whale watching vessels. The whale watch operators who belong to the Whale Watch Operators Association have developed stringent guidelines, which they address and revise annually. These operators often serve as a good examples of proper boating behavior around the whales, and can help teach private boaters what is and what isn't acceptable.

In an address to the recent Orca Recovery Conference in Seattle, Ralph Munro said "The whale watchers are our friends." Whale watching has raised public awareness and support for local orcas. Whale watch boats educate several hundred thousand people a year about the whales and about the natural history of this area. When people see and learn about whales, they begin to care about whales, and the habitat they live in. The whale watch experience provides an ideal platform for informing the public about the real problems the orcas are faced with - toxic pollution, salmon decline, and habitat degradation due to over-development of our shorelines and islands. This in turn creates a constituency for the whales, who need strong and harmonious support when decisions are being made about stream protection and restoration, oil spill protection, salmon management, superfund sites, use of home and garden chemicals, and over-consumption of water, electricity and fuel.

Let us not lose focus on the real and urgent problems of salmon decline and toxic pollution. Let us each do what we can to help save our beloved orcas - support orca research, salmon restoration and toxic clean-up, conserve energy and water, eliminate use of home and garden chemicals, and vote for elected officials who will put a high priority on the habitats and inhabitants of Puget Sound.

By Howard Garrett of Orca Network

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Demonstration of boat noise May 28, 2004

Orca Relief Citizens Alliance (ORCA) believes killer whales are adversely affected by the noise from whale watching boats. ORCA Protection Day, Saturday, May 29, 2004, will illustrate the problem and offer alternatives. The event will feature orca presentations, alternative land-based whale watching ideas, and boat noise demonstrations to help educate the public about the impact on the Orca population. The presentations will take place at 11 am, 1 pm and 3 pm on Court Street, in front of the San Juan County courthouse in Friday Harbor.

The group says imagine listening to your teenager’s stereo at full blast, from morning until night, all summer long. Now multiple that times 100. "That is what our orca whales experience almost every day of the spring and summer they spend in Puget Sound," says Mark Anderson, founder of Orca Relief Citizens Alliance (ORCA). "It’s not just annoying, it greatly reduces their ability to hunt for food and communicate with each other. Besides that, they expend more calories avoiding the boats, and, since their ability to fish is compromised, they draw down on their blubber, which is full of toxins."

Since 1995, the southern resident population of orcas (which spend between six and eight months of the year in the San Juan Islands) has declined by nearly 20 percent. During that same period, the number of motorized whale-watching boats in the area has increased dramatically – reaching up to 140 boats in a single day.

"The only step we can take right now to make an instant impact on helping these whales survive is to reduce the number of boats watching and following these whales and to restore their ability to find fish," says Dr. Birgit Kriete, executive director of Orca Relief. "Land based whale watching is a sure fire way to do this," she added.

Among the factors cited recently by the Washington State Department of Fish and Wildlife as contributing to the whale population decline is the harassment by marine vehicles. Orca Relief has commissioned three separate scientific studies that show motorized whale-watching boats may play a primary role in the decline of the southern resident Orca population. For more information on the studies, see www.orcarelief.org.

Other whale researchers have disputed the group's studies.

The group reminds people to do the following if they encounter a whale while boating:

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Federal Court: Whales can't sue on their own behalf

Whales do not have the right to sue, according to a decision Wednesday, Oct. 21, 2004 by the U.S. Ninth Circuit Court of Appeals. The plaintiff in the case was the Cetacean Community, the name chosen by the Cetaceans’ self-appointed attorney for all of the world’s whales, porpoises, and dolphins. The Cetaceans challenged the United States Navy’s use of low frequency active sonar during wartime or heightened threat conditions.

The court stated: " We are asked to decide whether the world’s cetaceans have standing to bring suit in their own name under the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Administrative Procedure Act. We hold that cetaceans do not have standing under these statutes.

"The scheme of the ESA is that a "person," as defined in § 1532(13), may sue in federal district court to enforce the duties the statute prescribes. Those duties protect animals who are "endangered" or "threatened" under §§ 1532(6) and (20). The statute is set up to authorize "persons" to sue to protect animals whenever those animals are "endangered" or "threatened." Animals are not authorized to sue in their own names to protect themselves.

"We agree with the district court in Citizens to End Animal Suffering & Exploitation, Inc., that "[i]f Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly." 836 F. Supp. at 49. In the absence of any such statement in the ESA, the MMPA, or NEPA, or the APA, we conclude that the Cetaceans do not have statutory standing to sue."

The complete decision is available on the Court's Web site.

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County lacks legal authority to regulate whale watching

The federal Marine Mammal Protection Act (MMPA) preempts any regulations San Juan County would put in place regarding whale watching boats according to county Prosecutor Randy Gaylord. "The Marine Mammal Protection Act states that federal agencies will be responsible for protecting marine mammals," said Gaylord. "A uniform federal approach is needed because marine mammals travel across state and international boundaries." In a 14-page written report he outlined several reasons the county lacks the power to enact regulations with the force of law regarding boats and whales.

Gaylord examined two proposed regulations. One regulation would involve an exclusionary zone on the west side of San Juan Island that would be a place where all vessels would be prohibited. This zone was intended to be a safe haven - a refuge for the orcas. The second regulation would establish a limited-entry permit system in which commercial and private boats would have to obtain a permit before following the whales in their boats. Through the permit system, the number of boats that could watch the whales on any one day would be restricted.

According to the report, both of these proposed regulations would face problems under the Marine Mammal Protection Act (MMPA). In addition, the regulations could face problems under the public trust doctrine, the commerce clause of the U.S. Constitution or treaties between the United States and Canada.

The report was presented to the county Marine Resource Committee last Wednesday. Committee members questioned Gaylord about other options.

Committee member Kevin Ranker asked if the prosecutor had looked at NAFTA. Gaylord hadn't but noted the more specific regulations such as MMPA would trump the more general rules such as NAFTA.

David Bain asked if the county could use a more round-about approach and protect the hydrophone areas. Gaylord said the public trust doctrine would prevent that.

Committee member Brian Calvert suggested U.S.Custom regulations may be an avenue. He noted the practice of Canadian boats crossing the border and hovering in U.S. waters while they watch whales. The boaters return to Canada without ever going through customs.

Calvert would like to see the National Oceanic & Atmospheric Administration (NOAA) transfer jurisdiction to the state or county. "NOAA permitted the captures (in the 1970s). My contention is NOAA is neglectful if not responsible for the decline. The argument could be used that NOAA's completely blown it. "

Audience member Mark Anderson of the Orca Relief Citizens' Alliance suggested the county regulate the behavior of boats. Gaylord said the behavior is covered by the MMPA regulations under harassment. Anderson wondered if the county could cite economic interest as the reason for regulations. Gaylord said it is not doable under the law. Anderson also asked about laws similar to ones used to limit overflights over the Grand Canyon. Gaylord noted that area is a National Park.

Committee member Terrie Klinger is in favor of the county doing something but cautioned against any action which would erode the Endangered Species Act. "We don't want to be the straw that breaks the camel's back," she said.

Committee member Rich Osborn noted Alaska and Hawaii have "harder rules" to protect the humpback whales. He said, "There is a lot of really good groundwork done. The county should petition the National Marine Fisheries Service to put in hard regulations and enforce them."

Examples of how NMFS adopted the regulations are included in the report. "These are good examples from which to begin. But, we need to do something that is effective now in San Juan County," said Gaylord. He encouraged the committee to lobby federal legislators.

Senator Maria Cantwell attended a meeting with more than two dozen scientists and citizens concerned about the orca population when she was on San Juan Island last week. (August, 2001)

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