I wrote and sent the following letter to the National Marine Fisheries Service recently, regarding their suggested proposal to take 1950s grey whale watch guidelines, and modify them slightly, to protect the Southern Resident Orca, now declared an Endangered Species:
Last November, having recently lost ten orca, most of the Northwest’s cetologists gathered at the Puget Sound Partnership meeting at the UW Marine Laboratory in Friday Harbor. We all agreed that the Southern Residents were dying from starvation.
Chemicals do not cause starvation.
The early signs of the last population crash that allowed Orca Relief to properly predict this decline were all related to starvation. In the latest crash, the whales again are showing “peanut” configurations: they are starving.
If the whales are dying of starvation, and they are, chemicals are not the direct cause of death.
Dr. Douglas DeMaster, then the head of the Marine Mammal Laboratory at NMFS, said it clearly during a 1997 public meeting on the subject in Friday Harbor: “The whales are not dying from toxins.”
This matches the findings of Von Blaricom and Alvarez from the University of Washington, in the first paper on the cause of Southern Resident mortality. Their conclusion on review of all inputs: toxins had no time correlation with death rates. What did? Chinook decline and increased boat presence – together.
This implies two things, both of which appear to be scientifically correct: increase the Chinook count, and mortality declines. Remove the boat effects, and mortality declines.
Since Orca Relief funded that first scientific study on what is killing our whales, we have gone on to fund X additional studies. Added to those are studies by others done in US waters, and by a large number of Canadian studies, the total number of scientific studies done on boat whale interactions is nearing fifty. Of these, not a single one shows positive biologic benefit for the whales; ALL of them describe negative results.
Included in these negatives, as shown by Kriete et. al., are increased respiration and metabolic rates, increased dive times, longer swim tracks, and a subsequent greater need for food per hour, when boats are present.
What is not known? How long do the whales have hearing problems after the fleet leaves the area? If the answer is twelve hours or more, they never recover their hearing, or full sonar capacity, throughout the entire summer tourist season. Two landmark studies by Bain show a strong correlation between boat count and whale mortality rate, and the surprising fact that a single outboard motor, at today’s legal distance in front of an orca, will completely shut down its sonar.
What is the effect on fish dispersal of ten or twenty commercial power boats and all the attendant private power boats? Ask any fisherman.
These negative results are less important when there are enough Chinook. But when the whales are already starving, boat presence accelerates their starvation.
So, what do we know?
We know that the whales are starving, and we know that boat presence accelerates their starvation.
But we know something else, thanks to the NMFS staff who presented the rule finding guidelines at the federal hearing in Friday Harbor: we know that it is illegal to pursue an endangered species.
Surely this is a typo, or a mistake; otherwise, how could so many companies be in business doing just that, pursuing whales?
No, it is not a mistake: it was repeated three times, at our request, in response to the first questions at that hearing, by NMFS biologist, attorneys, and administrators. No mistake, stated three times, verbatim: “it is illegal to pursue the Southern Resident Orca.”
If we know that boat presence is contributing directly to whale deaths, and if it is illegal to pursue these animals, NMFS has no cause to pursue incremental changes to a set of whale watch operator guidelines taken from 1950s NMFS regulations on watching grey (baleen) whales. Any cetologist will tell you, the toothed whales (such as orca) separated from baleen whales between 30 and 50MM years ago. Baleen whales, for whom current regs were made, do not have sonar, and they circumnavigate the planet in the longest migration of any animal.
Is it possible one could have less appropriate regulations?
You want to move the goal posts from 100 yards to 200 yards for boats, as though they will obey this impossible rule any better than the last one. To the toothed whales, trying to hear underwater, the difference is not enough to matter.
But since you tell us that pursuit is, in any case, illegal, we suggest that the current rulefinding process itself is out of date, a process that would have made sense, perhaps, before the ESA listing, but which make no sense now.
The purpose of the Endangered Species Act is to save the endangered species. Not to make money from it. Not to experiment with it. Not to use half-hearted or intellectually-dishonest regulations in a biological sham. The sole purpose of the ESA is to save the endangered species, and that is the ONLY legal interest NMFS can now have.
While those making money off the whales can be expected to continue until told to stop, your job is just that: to tell society what the law means, and to enforce it. Please do.
Ten years ago, the people of San Juan County signed a petition requiring that boats stop chasing the whales; it remains today the largest petition signing in County history. In a survey conducted at the time, 96 percent of County residents were for the petition. There is no doubt how the residents of San Juan County feel.
Our proposal is simple:
Enforce the ESA, and remove all commercial and private whale watching pressure from this endangered species until they are no longer endangered, as required by law.
If the population rebounds, we will know we did the right thing. If it is destroyed, at least we obeyed the law, by letter and intent, and did what we could to save the Southern Resident Orca.