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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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