Managing Vessel-Based Killer Whale Watching: A Critical Assessment of the Evolution From Voluntary Guidelines to Regulations in the Salish Sea

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Notes

Canada, Department of Fisheries & Oceans, Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada (Species at Risk Act Recovery Strategy Series, Ottawa, 2011). Online at http://www.sararegistry.gc.ca/virtual_sara/files/plans/rs_epaulard_killer_whale_1011_eng.pdf (accessed 27 Jan. 2012) [hereinafter SARA/Recovery Strategy].

U.S. Department of Commerce, National Oceanic & Atmospheric Administration, National Marine Fisheries Service, Endangered and Threatened Wildlife and Plants: Endangered Status for Southern Resident Killer Whales, Final Rule. 70 Fed. Reg. 69903 (18 Nov. 2005) [hereinafter NMFS Status Rule].

U.S. Department of Commerce, National Oceanic & Atmospheric Administration, National Marine Fisheries Service. Recovery Plan for Southern Resident Killer Whales (Orcinus orca) NMFS Northwest Region, Seattle, Jan. 2008). Online at http://ecos.fws.gov/docs/recovery_plan/whale_killer.pdf (accessed 27 Jan. 2012) [hereinafter NMFS/Recovery Plan]

Kari Koski, Soundwatch Program Annual Contract Report (Annual Report to NOAA under Contract CN-0221, 75 pp. The Whale Museum, Friday Harbor, WA. 2011). Online at http://www.whalemuseum.org/programs/soundwatch/2011%20Soundwatch%20NOAA%20Contract%20CN-0221%20Report.pdf (accessed 27 Jan. 2012) [hereinafter Koski].

U.S. Department of Commerce, National Oceanic & Atmospheric Administration, National Marine Fisheries Service, Advance Notice of Proposed Rulemaking, Protective Regulations for Killer Whales in the Northwest Region under the Endangered Species Act and Marine Mammal Protection Act, 72 Fed. Reg. 13464 (22 Mar. 2007) [hereinafter NMFS/Advance Notice].

Id.

San Juan County, WA, Ordinance Regulating the Operation of Vessels in Proximity to the Southern Resident Killer Whale, an Endangered Species, and Establishing Penalties for the Violation Thereof, Ordinance 35–2007, (2007). Online at http://www.whalemuseum.org/ordinance/SJCOO.pdf (accessed 27 Jan. 2012) [hereinafter San Juan Vessel Regulations].

Protection of Southern Resident Orca Whales-Penalty. Wash. Rev. Code 77.15.740 (2008). Online at http://apps.leg.wa.gov/RCW/default.aspx?cite=77.15.740 (accessed 27 Jan. 2012) [hereinafter Washington Vessel Law].

U.S. Department of Commerce, National Oceanic & Atmospheric Administration, National Marine Fisheries Service, Protective Regulations for Killer Whales in the Northwest Region under the Endangered Species Act and the Marine Mammal Protection Act, Final Rule, 76 Fed. Reg. 20870 (14 Apr. 2011) [hereinafter NMFS/Final Vessel Rule].

NMFS/Recovery Plan, supra note 3.

U.S. Department of Commerce, National Oceanic & Atmospheric Administration, National Marine Fisheries Service, Final Environmental Assessment, New Regulations to Protect Killer Whales from Vessel Effects in Inland Waters of Washington, RIN 0648-AV15 (NMFS Northwest Region, Seattle, Nov. 2010). Online at http://www.nwr.noaa.gov/Marine-Mammals/Whales-Dolphins-Porpoise/Killer-Whales/Recovery-Implement/upload/Vessel-Rule-EA.pdf (accessed 27 Jan. 2012).

The nomenclature “The Salish Sea” was entered by the United States government into the Geographic Names Information System (GNIS) on 17 Nov. 2009 (http://geonames.usgs.gov/pls/gnispublic/ and then search for Salish Sea) and by the British Columbia Ministry of Forests, Lands and Natural Resource Operations into the British Columbia Geographical Names Unit on 9 Feb. 2010 (http://apps.gov.bc.ca/pub/bcgnws/names/53200.html) (both accessed 27 Jan. 2012).

Nicholas A. Brown & Joseph K. Gaydos, Species of Concern within the Georgia Basin-Puget Sound Marine Ecosystem: Changes from 2002 to 2006, in Proc. 2007 Puget Sound Georgia Basin Research Conference 1–10 (Vancouver, B.C., Canada. 26–29 Mar. 2007). Online at http://www.vetmed.ucdavis.edu/whc/seadoc/pdfs/brown-gaydos07.pdf (accessed 27 Jan. 2012). The SeaDoc Society (www.seadocsociety.org, accessed 27 Jan. 2012) is a program of the UC Davis School of Veterinary Medicine's Wildlife Health Center, dedicated to finding scientific solutions to the environmental problems impacting the entire Salish Sea ecosystem and its wildlife, without regard to national borders.

Joseph K. Gaydos & S. F. Pearson, Birds and Mammals That Depend on the Salish Sea: A Compilation, 92 Nw. Naturalist 79–94 (2011).

Marilyn E. Dahlheim et al., Eastern Temperate North Pacific Offshore Killer Whales (Orcinus orca): Occurrence, Movements, and Insights Into Feeding Ecology, 24 Mar. Mamm. Sci. 719–729 (2008).

John Ford et al., Shark Predation and Tooth Wear in a Population of Northeastern Pacific Killer Whales, 11 Aquat. Biol. 213–224 (2011).

M. Bradley Hanson, et al., Species and Stock Identification of Prey Consumed by Endangered Southern Resident Killer Whales in Their Summer Range, 11 End. Spec. Res. 69–82 (2010).

G. M. Ellis, J. R. Towers, & J. K. B. Ford, Northern Resident Killer Whales in British Columbia: Photo-Identification Catalogue and Population Status to 2010, Can. Tech. Rep. Fish. Aquat. Sci. 2942 (2011).

David Ellifrit, Kenneth C. Balcomb III, & Erin Heydenreich, Official Orca Survey: A Naturalist's Family Tree Guide to Orca Whales of the Southern Resident Community (The Center for Whale Research, Friday Harbor, WA. 2011).

John Ford, Graeme Ellis, & Kenneth Balcomb III, Killer Whales: the natural history and genealogy of Orcinus orca in British Columbia and Washington State (2d ed. 2000) [hereinafter Ford et al.].

Id.

L. G. Barrett-Lennard & G. M. Ellis, Population Structure and Genetic Variability in Northeastern Pacific Killer Whales: Toward an Assessment of Population Viability, CSAS Res. Doc. 2001/065 (2001). Online at http://www.dfo-mpo.gc.ca/csas-sccs/Publications/ResDocs-DocRech/2001/2001_065-eng.htm (accessed 27 Jan. 2012).

Ford et al., supra note 20.

NMFS/Recovery Plan, supra note 3.

P. F. Olesiuk, M. A. Bigg, and G. M. Ellis. Life History and Population Dynamics of Resident Killer Whales (Orcinus orca) in the Coastal Waters of British Columbia and Washington State, 12 Spec. Issue Rep. Int’l Whaling Comm. 209–244 (1990).

NMFS/Recovery Plan, supra note 3.

Id. See also M. M. Krahn et al., Status review of Southern Resident Killer Whales (Orcinus orca) under the Endangered Species Act (U.S. Department of Commerce, National Oceanic & Atmospheric Administration, Tech. Memo. NMFS-NWFSC-54, Seattle, 2002).

International Fund for Animal Welfare (IFAW), Whale Watching Worldwide: Tourism Numbers, Expenditures and Economic Benefits (IFAW Special Report, Yarmouth, MA 2009). Online at http://www.ifaw.org/sites/default/files/whale_watching_worldwide.pdf (accessed 27 Jan. 2012) [hereinafter IFAW 2009].

Id.

Id.

P. Corkeron. Whale Watching, Iconography, and Marine Conservation. 18 Cons. Biol. 847–849 (2004).

IFAW 2009, supra note 28.

R.W. Osborne, A historical ecology of Salish Sea “resident” killer whales (Orcinus orca): With implications for management (1999) (unpublished Ph.D. dissertation, University of Victoria, British Columbia) (on file with the authors) [hereinafter Osborne 1999].

Koski, supra note 4.

Id.

Osborne 1999, supra note 33.

IFAW 2009, supra note 28, at 219.

Koski, supra note 4.

Id.

Id.

Such sites are listed, for example, at http://www.thewhaletrail.org (accessed 27 Jan. 2012).

This stems from Lime Kiln State Park being designated as “Whale Watch Park” in 1983 and currently being advertised as such on popular San Juan tourism Web sites such as http://www.thesanjuans.com/san-juan-island-places/sanjuan-parks-forest/lime-kiln-state-park.shtml (accessed 27 Jan. 2012).

Koski, supra note 4.

Id.

The Orca Network is a non-profit organization dedicated to “connecting whales and people in the Pacific Northwest.” See http://orcanetwork.org/ (accessed 27 Jan. 2012).

K. Koski & R. W. Osborne, Evolution of Adaptive Management Practices for Vessel-based Wildlife Viewing in the Boundary Waters of British Columbia and Washington (Paper presented at the Puget Sound–Georgia Basin Research Conference, Seattle, Washington, 29 March 2005).

For treatments in textbooks, see C.S. Holling, Adaptive Environmental Assessment and Management (1978); C. J. Walters, Adaptive Management of Renewable Resources (1986); B. Mitchell, Geography and Resource Analysis (2d ed. 1989); T. F. H. Allen & T. W. Hoekstra, Towards a Unified Ecology (1992).

Id.

R. W. Osborne. Trends in Killer Whale Movements, Vessel Traffic, and Whale Watching in Haro Strait. Proc. Puget Sound Research ‘91 672–688 (Puget Sound Water Quality Authority, Olympia, Washington, 1991).

The 1972 Marine Mammal Protection Act pays only cursory attention to potential impacts from vessels with a prohibition preventing disturbance. 16 U.S.C.1362§(3)(18)(A)(ii). The 1985 Canada Fisheries Act made no provision for non-lethal marine mammal protection until it was amended in 1993. Canadian Fisheries Act, R.S.C., ch. F 14 (1985). This is now the statute under which rules prohibiting disturbance of marine mammals are promulgated as Marine Mammal Regulations (Fisheries Act) SOR/93–56 (Can).

The Whale Watch Operators Association Northwest changed its name to the Pacific Whale Watch Association in 2009. A list of members and the current version of the Operators Code of Conduct can be found on the Association's Web site at http://pacificwhalewatch.org/ (accessed 27 Jan. 2012).

The Robson Bight (Michael Bigg) Ecological Reserve managed by BC Parks; information online at http://www.env.gov.bc.ca/bcparks/eco_reserve/robsonb_er/robson_b_brochure.pdf (accessed 28 Jan. 2012).

Marine Mammal Monitoring Project, Annual Report, 2001–2002 (Marine Mammal Monitoring Project, Victoria, British Columbia).

S. Kruse, The Interactions Between Killer Whales and Boats in Johnstone Strait, B.C., in Dolphin Societies: Discoveries and Puzzles 149–159 (Karen Pryor & Kenneth S. Norris eds. 1991); R. Williams, A. W. Trites, & D. E. Bain. Behavioural Responses of Killer Whales (Orcinus orca) to Whale-Watching Boats: Opportunistic Observations and Experimental Approaches 256 J. Zool. 255–270 (2002);. R. Williams et al., Behavioural Responses of Male Killer Whales to a ‘Leapfrogging’ Vessel, 4 J. Cetacean Res. Mgmt. 305–310 (2002).

Andrew D. Foote, R. W. Osborne & A. R. Hoelzel, Whale-call Response to Masking Boat Noise 428 Nature 910 (2004); J. K. Ford & G. M. Ellis, Prey Selection and Food Sharing by Fish-Eating ‘Resident’ Killer Whales (Orcinus orca) in British Columbia, CSAS Doc. 2005/041 (2005).

The current Be Whale Wise Marine Wildlife Guidelines for Boaters, Paddlers and Viewers are online at a Web site managed cooperatively by transboundary Be Whale Wise partners (NMFS, DFO, Straitwatch, and Soundwatch) and hosted by NMFS at http://www.bewhalewise.org/marine-wildlife-guidelines (accessed 28 Jan. 2012) [hereinafter Whale Wise Guidelines].

K. L. Koski et al., The Emperor's New Clothes: After a Decade of Watching the Whale Watchers, Is It Finally Time to Declare the Need for Federal Vessel Regulations to Better Protect the Endangered Population of Southern Resident Killer Whales? (unpublished paper presented at the 18th Biennial Conference on the Biology of Marine Mammals Quebec City, Québec, Canada, October 2009); N. Dedeluk & D. Sandilands. Straitwatch (unpublished paper presented at the18th Biennial Conference on the Biology of Marine Mammals Quebec City, Québec, Canada, October 2009) (copies on file with the authors).

NMFS/Recovery Plan, supra note 3.

SARA/Recovery Strategy, supra note 1.

B. L. Taylor et al., Orcinus orca, in IUCN Red List of Threatened Species, version 2011.2, online database at http://www.iucnredlist.org (accessed 28 Jan. 2012) [hereinafter Taylor et al.].

Id.

Cetacean Conservation under the Convention on Migratory Species (Report by UNEP/CMS Secretariat, Bonn, Germany, 2010). Online at http://www.cms.int/reports/small_cetaceans/cetacean_conservation.htm (accessed 28 Jan. 2012).

Taylor et al., supra note 60.

One SRKW known as Lolita, currently in captivity in Florida, was captured in August 1970, prior to enactment of the MMPA and is therefore not protected either by the statute or by subsequent legal action, such as the lawsuit brought by People for the Ethical Treatment of Animals (PETA) on behalf of wild-caught killer whales captive in U.S. facilities. See the background to the lawsuit at http://www.peta.org/mediacenter/news-releases/PETA-Marine-Mammal-Experts-Sue-SeaWorld-for-Violating-Orcas-Constitutional-Rights.aspx (accessed 28 Jan. 2012).

Marine Mammal Protection Act, 16 U.S.C. 1361 et seq.

The process leading to determination of depleted status began in May 2001, when the Center for Biological Diversity petitioned NOAA to list Southern Resident killer whales as “threatened” under the Endangered Species Act. In August 2001, NOAA formally accepted the petition and started the assessment process to verify whether the whales were eligible for protection under the ESA. In July 2002, NOAA acknowledged that, while it was clear the population was declining, the Southern Resident killer whales did qualify for protection because they were not members of a single, worldwide species (Orcinus orca) and did not, therefore, meet the criterion of biological “significance” established under the ESA for listing a species as “threatened.” In recognition of the decline, however, NOAA did start the process needed to declare the Southern Residents a “depleted” stock, and this is what led to their listing under the MMPA in May 2003. This listing triggered the development of a conservation plan, which is similar to a recovery plan under the ESA for listed species.

The Orca Relief Citizens’ Alliance, a Washington state NGO, is challenging the meaning of the term “pursue” as it is currently used in ESA prohibitions. The issue goes to the impact of whale watching when ESA listed species are involved. The argument is that whale watching vessels leaving port with the express intention of locating and following-to-observe listed animals are in violation of ESA's “pursue” prohibition. See the information at http://www.orcarelief.org (accessed 28 Jan. 2012).

In December 2003, a federal court ordered NOAA to reconsider the processes used to determine which species are eligible for listing under the ESA. One year later, NOAA proposed to list the Southern Residents as “threatened.” After a subsequent year-long review of the most recent science, NOAA declared the Southern Residents a Distinct Population Segment (DPS) of the worldwide species (Orcinus orca) in November, 2005, and afforded them the highest protections available under U.S. law by listing them as “endangered.” NMFS Status Rule, supra note 2.

NMFS/Recovery Plan, supra note 3.

Under the law, “critical habitat” is defined as: (1) specific areas within the geographical area occupied by the species at the time of listing, if they contain physical or biological features essential to conservation, which features may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the species if the agency determines that the area itself is essential for conservation. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Endangered and Threatened Species: Designation of Critical Habitat for Southern Resident Killer Whale, Final Rule, 71 Fed. Reg. 69054–69070 (29 Nov. 2006).

NMFS/Recovery Plan, supra note 3.

Washington Vessel Law, supra note 8.

NMFS/Recovery Plan, supra note 3, at II-70.

The Marine Mammal Regulations (Fisheries Act) SOR/93–56 (Can) provide in §7 that “No person shall disturb a marine mammal except when fishing for marine mammals under the authority of these Regulations.”

Under id. §4 and for payment of only $5Can. a permit is available to fish a “cetacean other than beluga, bowhead whale, narwhal, or right whale.”

Koski & Osborne, supra note 47, at 6.

See http://www.pac.dfo-mpo.gc.ca/consultation/fisheries-peche/mamm-mar/index-eng.htm (accessed 28 Jan. 2012).

They are described in the consultation workbook at http://www.pac.dfo-mpo.gc.ca/consultation/fisheries-peche/mamm-mar/docs/mmra.pdf (accessed 28 Jan. 2012).

Canada Gazette, Vol. 146, No. 12–March 24, 2012, at http://www.gazette.gc.ca/rp-pr/p1/2012/2012-03-24/html/reg2-eng.html (accessed 30 April 2012).

Thus, proposed amendment 9 would provide that subject to some exceptions no person shall approach within 100 meters of any cetacean or walrus. Id. at 6.

Committee on the Status of Endangered Wildlife in Canada (COSEWIC), Species Database (2002, updated in 2012). Online at http://www.cosewic.gc.ca/eng/sct1/searchform_e.cfm (accessed 28 Jan. 2012).

SARA/Recovery Strategy, supra note 1.

Id.

The Species at Risk Act, 2002 S.C., ch. 29 (Can.) provides in §58(1) that no person shall destroy any part of the critical habitat of any listed endangered species or of any listed threatened species—or of any listed extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada.

In December 2008, and again in April 2009, Canadian NGOs challenged in court the DFO's statement on protecting critical habitat, arguing that it failed to adequately protect resident killer whale habitat. For the statement, see http://www.sararegistry.gc.ca/virtual_sara/files/ch_killer_Whale_0908_e.pdf (accessed 28 Jan. 2012). The court consolidated the proceedings and in December 2010 issued its Judgment. See David Suzuki Foundation et al. v. Minister of Fisheries and Oceans 2010 F.C. 1233 (Can.).

Essentially, DFO is under a duty to prohibit vessel noise that destroys the whale's acoustic environment. In the United States, it is rare for a court to tell the government specifically what it has to do. In the Canadian trial court, the Minister had argued that outreach programs, stewardship programs, voluntary codes of conduct or practice, voluntary protocols and guidelines, and policy could protect critical habitat sufficiently under SARA, but this argument was soundly rejected. For background and commentary, see http://www.davidsuzuki.org/media/news /2010/12/decisive-killer-whale-court-win-offers-hope-for-at-risk-species (accessed 28 Jan. 2012).

SARA/Recovery Strategy, supra note 1.

Appellant's Memorandum of Fact and Law, Minister of Fisheries and Oceans v. David Suzuki Foundation et al., Court File No. A-2-11, filed April 28, 2011 (copy on file with the authors).

Respondent's Memorandum of Fact and Law, Minister of Fisheries and Oceans v. David Suzuki Foundation, et al., Court File No. A-2-11, filed June 9, 2011 (copy on file with the authors). The appellate decision comes in Minister of Fisheries and Oceans v. David Suzuki Foundation et al., 2012 FCA 40 (Can.).

San Juan Vessel Regulations, supra note 7.

Protection of Southern Resident Orca Whales–Penalty. Wash. Rev. Code 77.15.740 (2008). This law is less restrictive than the federal vessel law subsequently enacted in 2011. It remains to be seen if Washington state will pursue increasing the distance restriction to make it match the federal law, if they will keep it as is, or if they will retire this regulation.

Id.

NMFS/Advance Notice, supra note 5.

U.S. Department of Commerce, National Oceanic & Atmospheric Administration, National Marine Fisheries Service, Protective Regulations for Killer Whales in the Northwest Region under the Endangered Species Act and Marine Mammal Protection Act, Proposed Rule, 74 Fed. Reg. 37674 (29 July 2009).

NMFS/Final Vessel Rule, supra note 9.

The Whale Museum's Soundwatch program has made recommendations for special management areas based on long-term monitoring data from areas where vessels and killer whales most often overlap and where there are the highest numbers of vessel operators not in compliance with existing guidelines and vessel laws. See Kari Koski, Soundwatch Recommendations for Special Management Areas for Killer Whales (unpublished paper presented to the Salish Sea Ecosystem Conference, Vancouver, B.C., Canada, October 2011).

Whale Wise Guidelines, supra note 55.

NMFS/Final Vessel Rule, supra note 9.

Erich Hoyt, Marine Protected Areas for Whales, Dolphins and Porpoises: A world handbook for cetacean habitat conservation and planning (2011).