“Few sectors of the tourism industry have experienced the same levels of growth in such a concentrated period of time as whale- and dolphin-based operations. As the popularity of interacting with marine mammals in the wild increases, managers of these operations face the challenge of providing a service while protecting the target species. Few forms of tourism provide a greater challenge in accurately understanding the impacts of tourism on marine resources and appropriate management responses.”
So stated a House bill proposed in the last legislative session to cap at eight the number of dolphin-watching vessels operating in waters off Wai’anae on the west coast of O’ahu. The bill had as much to do with user conflicts as it did with protecting dolphins and the public.
“Our worst days in this office is when someone gets hurt,” Department of Land and Natural Resources director Peter Young said recently, recalling a recent incident last year where a tourist swimming with dolphins off the Wai’anae Coast of O’ahu was bitten by a tiger shark.
The bill, which didn’t make it to a floor vote, went to the heart of the DLNR’s struggle to control commercial uses of the state’s coastal areas. Surfing schools and kayak tours, which cross public beaches to get to the water or use them as staging areas, have proliferated in recent years, causing conflicts with recreational and commercial users, as well as with Hawaiian cultural practitioners. In the case of kayak tours, some of which target areas where dolphins go to rest, concerns have also arisen about public safety and their effects on dolphins and other marine resources.
With regard to protecting dolphins, whales and monk seals from these nearshore activities, the state faces an additional dilemma: a recent federal court ruling against a 13-year-old ban on high-speed boating during the humpback whale season eviscerated the state’s ability to enact or enforce regulations that relate to the protection of marine mammals.
Despite the setback, the state has tried to make up the ground it’s lost by working with the federal agency charged with protecting marine mammals and by taking a creative, and perhaps legally risky, approach to its permitting process.
Kayaks
One day last summer at Keone’o’io, also known as La Perouse Bay, Maui Natural Area Reserves manager Bill Evanson tried to explain to a tourist, preparing to kayak into the bay’s calm, sheltered waters in search of dolphins resting there, that doing so would be like intruding into someone’s bedroom while they were sleeping.
The kayaker nodded in understanding, but then told him, “I figure if they come to you, then that means they want to be there.”
That logic – if the dolphins stay, they must not mind us – is often offered in defense of the kayak- or swim-with-dolphin operations conducted in waters off Maui, the Big Island, and O’ahu. But DLNR director Young and his staff don’t buy it.
“It’s just like a little kid that needs to rest and still wants to play,” Young says of those dolphins that do gather around humans who enter their resting areas at Makua in Wai’anae, Kealakekua, on the Kona Coast of the Big Island, or Keone’o’io, South Maui. “The kid still needs to rest.”
At Keone’o’io, the DLNR recently shut down all commercial kayak vendors to address a wide range of concerns, including public safety and protection of archaeological sites and marine resources. On O’ahu, where a “swim with” kayak operation had been illegally launching from Ka’ena State Park, the Board of Land and Natural Resources has issued an interim concession permit to Makua Lani, a non-profit that “takes Japanese guests to reenact the way of ancients” with dance and song, according to its executive director, Richard Holland. Holland had previously run a company, Dolphins and You, that had been operating without a permit, as well as another swim-with-dolphin company at Kealakekua.
The interim permit for Holland’s new company, Makua Lani, includes a condition that if anyone associated with the kayak tour, whether in a kayak or swimming in the water, is approached within 50 yards by any marine mammal (other than a humpback whale), Makua Lani will “ensure that all guides and guests immediately get out of the water and enter their watercraft and make significant efforts to move away from the animal to a distance of 50 yards or more in a manner consistent with public safety and minimum marine mammal disturbance.” Swimming with, petting, touching and attempting to elicit a reaction from any marine mammals are also prohibited. (Makua Lani needed to obtain a DLNR permit because it was launching from land controlled by the DLNR’s Division of State Parks. The permit is interim pending preparation the award of a contract to a concession operator.)
Conditions attached to the interim permit were based on recommendations by DLNR’s aquatic biologist Dave Gulko, who along with a small team, assessed resource issues at Makua for two days in May.
“A short interview conducted by myself with a pair of mainland tourists on Makua Beach on May 17, 2004, revealed that they had heard that this area was a good place to go to swim out to, and interact with, the dolphins; and that was why they had come there,” Gulko wrote in a June 8 report on commercial activity at Makua Beach.
During the two-day assessment, “motorized vessels, kayaks and snorkelers from shore were observed in the water, in areas where resting dolphin schools have previously been reported. As this area is one of the only large, relatively calm embayments along this side of the island, the scale of such unregulated and unmonitored activity raises concerns,” he wrote. He also noted in his report that on both days, his team saw small, high-speed motor boats operating close to shore, posing safety issues for people in the water as well as sea turtles, dolphins, and schools of akule.
Makua Lani representatives at the July 9 Land Board meeting protested the condition in the proposed permit that would require retreat when approached within 50 yards of a marine mammal.
You can’t run an operation if you have to spend all day running away from dolphins, Holland said. “You’ll basically close this operation, put 20 people out of work … and you still have vessels coming in and the most respectful operation gets iced out.”
Conflicts
Holland’s complaint that motorized vessels don’t face the same restrictions that are being placed on his operation suggests the scope of conflicts occurring at Makua.
On May 31, 2004, Victoria Cullins, president of the Wild Dolphin Foundation, whose purpose is described on its website as “protecting and restoring the natural habitats of dolphins through research, advocacy, and public education,” complained in a letter to DLNR’s Young about Holland’s former company, Dolphins and You. After two vans of about 15 tourists each had unloaded at Makua, Cullins wrote, “Mr. Holland repeatedly yelled ‘CHARGE’ from his kayak to both parties of Japanese visitors on the beach, causing a scramble to the water. The vanloads of Dolphins and You participants plunged in (along with two other kayaks that had been on the beach), splashing and shrieking, unmindful of other recreational and subsistence users, including two commercial tour boats, one of which had to back out of their midst under hazard of surrounding swimmers.”
User conflicts, public safety, and impacts on dolphins all led to bills and resolutions being proposed in the 2004 legislative session to minimize the impacts of dolphin-watching activities on other ocean users.
Senate Concurrent Resolution 64 sought to have the U.S. National Oceanic and Atmospheric Administration work with the DLNR to help manage and protect the Hawaiian spinner dolphin population “in a manner that is consistent with the United States Marine Mammal Protection Act.”
“The state is worried that the increase in commercial dolphin viewing expeditions is disturbing the dolphins’ resting patterns and creating a rift between tour operators and commercial fishermen, both of which compete for dock space and fishing grounds,” the resolution stated.
Senate Resolution 29 asked that DLNR cooperate with commercial tour operators and fishermen in the Wai’anae area to create a management plan to protect the Hawaiian spinner dolphin population.
House Bill 2627 sought “to clarify the department’s authority over commercial dolphin-watching tours in state waters and protect the dolphins and other offshore marine wildlife in the Wai`anae coast area by imposing a moratorium on the issuance of additional permits to dolphin tour operations.” (According to DLNR’s Division of Aquatic Resources, at least five commercial tour vessels offering dolphin encounters operate out of Waianae Small Boat Harbor, and four vessels operate out of Ko Olina. All those operations are conducted under permits from the DLNR’s Division of Boating and Ocean Recreation.)
None of the bills or resolutions passed. And on July 9, the state’s very ability to enact laws or adopt rules to protect marine mammals was dealt a body blow.
A Blow for Whales
In 1990, the Hawai’i State Legislature passed Act 313, which banned thrill craft, parasailing, and high-speed water sledding or boating between December 15 and May 15 in the waters from Pu’u Ola’i to Hawea Point off south and west Maui. These waters are within the Hawaiian Islands Humpback Whale National Marine Sanctuary.
The law, according to state documents, was intended to balance the interests of parasailing and thrill-craft operators with concerns over safety, noise, visual pollution, and impacts on the endangered humpback whale.
So from 1991 until this year, commercial use permits issued by the DLNR’s Division of Boating and Ocean Recreation forbade parasailing and other high-speed water activities during peak humpback whale season. The law, and DOBOR’s matching administrative rules, did allow whale-watching boats to ply the waters during the winter.
In the late 1990s, whale-watching vessels operated by the Pacific Whale Foundation were apparently getting too close to whales, and in January 2000, the state of Hawai’i filed a complaint in Circuit Court against the foundation, alleging that the organization’s boats had violated 91 times the DLNR’s administrative rules prohibiting the take of endangered or threatened species. (A take need not be a physical encounter, but can include close approaches as well as other harassing activity.)
In his September 18, 2001 ruling in favor of the state, Circuit Judge Joseph E. Cardoza concluded that the federal Marine Mammal Protection Act did not preempt the state from enforcing its own law to protect marine mammals, and further that the federal Endangered Species Act allowed the state to regulate the taking of endangered marine mammals provided that the regulations complied with the ESA, which, he concluded, they did.
Reversing Course
But all that changed on July 9, 2004. A federal judge ruling on a parasailing case found just the opposite – that the state lacked the authority to enforce rules or adopt laws designed to protect marine mammals. In this case, two Maui parasailing companies, UFO Chuting and KMBS, Inc., contended that the state’s seasonal ban on parasailing and other high-speed boating activities within the Hawaiian Island Humpback Whale National Marine Sanctuary off Maui was unconstitutional.
Hearing the case was U.S. District Judge Susan Oki Mollway, who found that the Marine Mammal Protection Act does indeed prohibit states from enacting laws relating to the taking (harassment, hunting, capturing, or killing) of marine mammals, unless the federal government transfers its authority for the care of those species to the state.
Mollway agreed with UFO that the state parasailing ban was tailored to protect humpback whales during their breeding season. That the Legislature had considered other issues, including water safety, visual and noise pollution, and the protection of other marine life, when it passed the law “does not mean that the restriction does not relate to the safety of whales,” she wrote in her order granting UFO’s motion for summary judgment.
For the state, deputy attorney general Bill Wynhoff argued that the legislative history of the Endangered Species Act and the MMPA suggested that Congress meant to give states the authority to enact stricter laws.
Wynhoff pointed to a 1973 congressional report that states, “Wherever a conflict between the Endangered Species Act and the recent Marine Mammal Protection Act might occur, the stricter of the two will prevail. This would allow, for example, state regulation of the taking of marine mammals, once these were declared endangered or threatened, without the state having a fully approved marine mammal program, as it would otherwise be required to do under the Marine Mammal Protection Act.”
Despite this language, Mollway disagreed with Wynhoff.
“In leaving intact the [MMPA’s] preemption provision [in section 1379] in 1981 and 1994, Congress demonstrated unequivocally that, in passing the ESA in 1973, it had not intended to repeal section 1379 in the MMPA,” Mollway wrote, adding that the ban also conflicted with a federal rule that allows vessels to approach, by any means other than aircraft, no closer than 100 yards of a whale.
‘Better Off Trying’
Mollway’s ruling prevents the state from enacting laws relating to the taking of marine mammals. Other states, including Washington, Alaska, and Florida, also have rules relating to marine mammals, but Bill Robinson, administrator of the National Oceanic and Atmospheric Administration’s Pacific Islands Regional Office, says he doesn’t think the Hawai’i ruling will affect those other states, many of which have enforcement agreements with the federal government.
Instead of appealing Judge Mollway’s decision, the DLNR appears to be trying to work with the federal government to gain some enforcement authority.
“The word ‘deputizing’ has been used, where DLNR enforcement people and federal enforcement people will be able to enforce each others rules and laws,” Young says. “A Washington lawyer is analyzing the possibilities.”
Those possibilities, according to Robinson and Tamra Faris, assistant regional administrator for protected resources, include a joint enforcement agreement with NOAA’s Office of Law Enforcement, a cooperative agreement under Section 6 of the Endangered Species Act, or both.
The state already works informally with the federal government when dealing with monk seals that show up around the Main Hawaiian Islands and with marine mammal strandings. Faris says the state sometimes provides equipment, a base of operations, and transportations services.
When a monk seal in Kealakekua Bay gained notoriety for grabbing people in the water, DLNR cooperated in his relocation, Young says. “When marine mammal issues come up, we speak in the context of ‘we’… DLNR, federal agencies, the community.”
Since Mollway’s ruling, however, Young says he approached NOAA about formalizing their cooperative relationship. While he is not certain what shape that agreement will take, he says, “There is an intent for us to be able to work closer together. It’s in our best interest. It extends each of our ability to deal with these issues.”
Under a Section 6 agreement (the name refers to a section of the Endangered Species Act), the state could develop a management program to address protection of threatened or endangered marine animals.
“It’s a little bit unclear if Section 6 allows the state to promulgate its own regulations,” Robinson says, “but it can come up with a plan, and federal regulations can be enforced and administered by the state.” The state can also apply for federal funds to help carry out the agreement.
The U.S. Fish and Wildlife Service has Section 6 agreements in almost every state, while NOAA has them in about 10, Robinson says.
Florida’s Fish and Wildlife Conservation Commission has a cooperative agreement with NOAA for several endangered sea turtles, the shortnosed sturgeon, and the right whale, as well as the threatened loggerhead sea turtle. Under the agreement, NMFS may provide financial assistance to Florida to develop endangered and threatened species conservation programs. It also states that NMFS and the state shall carry out the program, which may involve law enforcement, research, management, and public education.
Such an agreement for Hawai’i’s endangered and threatened marine species, which include sea turtles as well as the humpback whale and monk seal, might allow tighter control over activities that may affect them. Robinson estimates it would take about a year to approve such an agreement.
A New Approach
Because Section 6 agreements deal only with endangered and threatened species, Hawai”s problems with dolphin tours could not be addressed in this way. A joint enforcement agreement with NOAA, however, might allow the state to regulate interactions with dolphins, which fall under the jurisdiction of the Marine Mammal Protection Act.
Currently, 23 coastal states and territories have joint enforcement agreements (JEAs) with NOAA’s Office of Law Enforcement. As with Section 6 agreements, JEAs may allow states to receive federal funding. In fiscal year 2004, Congress appropriated $17.5 million to NOAA’s OLE, much of which is intended for cooperative initiatives.
One JEA with Washington state included $900,000 in federal money to help enforce fisheries regulations. Oregon state received $100,000 to help increase marine patrols and purchase vessels also to enforce fisheries regulations.
Robinson says NOAA could enter into a JEA with Hawai’i relatively quickly. NOAA’s new Pacific Islands Regional Office is expecting a new special agent of enforcement to arrive soon. “As soon as she gets established,” he says, NOAA will meet with the state to discuss their options further.
In the meantime, Robinson and Young have already cooperated on Makua Lani’s concession permit conditions regarding dolphin interactions.
Young says he sought NOAA’s opinion on the proposed permit before it was presented to the Land Board. And, Robinson says, “We were supportive with putting in those permit conditions. We think it’s a good thing.”
NOAA’s own enforcement of the MMPA with regard to the dolphin interactions is not easy, he adds. “One of the difficulties is compiling evidence,” he says.
Although the condition might be seen as another regulation relating to the taking of marine mammals, and therefore incongruous with Mollway’s decision, Young says, “We’re not attempting to enforce any federal law… Where it’s appropriate to have this type of use, we will incorporate into the concession agreement a condition … – and not as a violation of any federal law – that if you do approach too close, if you do swim with dolphins, then it violates the concession agreement and we cancel your agreement, and you’re no longer permitted to operate.”
When asked if the condition would run into the same jurisdiction problems as the seasonal parasailing ban, Young replied that he didn’t know. The condition, he says, is simply a reflection of NOAA’s position on swim-with-dolphin programs.
Robinson also doesn’t know whether the dolphin approach condition is unconstitutional under Mollway’s reading of the law.
“The courts will decide, if it comes to that, if the same jurisdictional issues apply,” he says.
In any case, Young says he’s considered adding such conditions to surf school permits and permits for other activities, to prevent operators from trying to reach dolphins.
“My concern is that if we do nothing, and we continue to have swim-with-dolphin programs, are we better off? I don’t think so. I think we’re better off trying to do something to restrict them,” he says.
— Teresa Dawson
Volume 15, Number 4 October 2004
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