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Summary and Notes from Proceedings of Whale Workshop on county Web site
San Juan County Prosecutor Press Release
Prosecutor's remarks at March 13, 2001
Whale Watching Management Workshop
Background: On Tuesday March 13, 2001, the San Juan County Board of County Commissioners conducted a one-day workshop on potential management issues pertaining to the southern resident Orca whale population. Over 60 people from the United States and Canada attended the workshop. Speakers included scientists, representatives of the Northwest Whale Watch Operators Associations from the United States and Canada, local, state and federal regulatory agencies including the National Marine Fisheries Service, Washington Department of Fish and Wildlife, National Marine Mammal Lab, Fisheries and Oceans, Canada and U.S. Customs and the San Juan County Sheriff. Randy Gaylord, the San Juan County Prosecuting Attorney, was first of three people to talk about "Local Enforcement Perspectives." A summary of the remarks of our participants and the agenda may be found at www.co.san-juan.wa.us
Thank you for the invitation to speak today. I would like to acknowledge especially the San Juan County Board of County Commissioners who are here. The Commissioners have always been interested in the marine resources of this County. They have led the charge against jetskis and supported the state of Washington on tanker regulations. They take a strong interest in everything in the natural environment, including the Orca whales.
I was asked to make some comments regarding the local law enforcement perspective. Joining me is Bill Cumming, the San Juan County Sheriff, and Dennis Hazelton, the Friday Harbor Port Director at the U.S. Customs.
At the outset, I think that the subject of local "enforcement" is in error as we have no local laws on this topic to enforce. So, I will discuss the local regulatory perspective and what I see as some of the questions and problems that go along with that.
First, we ask: What are the boundaries of San Juan County? One speaker this morning mentioned that the Orcas don't know where the international boundaries are and this is true. But, when talking about local regulations, boundaries mean everything because San Juan County has no jurisdiction to enact or enforce laws outside of its boundaries. And, of course, we know what the boundaries are. The exterior boundaries of San Juan County are formed by the center line of the straits that surround the County. The County has the ability to exercise its police power only within these boundaries.
The police power is limited to that conduct that is local in nature. We learned from the jetski case that "local" does not mean that the activity must occur only in San Juan County. The test for "local" does not mean that the activity does not occur in other areas or that people engaged in the activity may cross the County boundaries. I'll talk more about that later. But, in analyzing the police power, we must examine whether, in fact, the problem is a local problem.
So this leads to the second question: What is the problem to be addressed? After listening to the discussion this morning, I would suggest that the problem be phrased as broadly as possible. I would suggest that for our purposes we ask: Are the whales bothered? It is not necessary that we use the language of the Marine Mammal Protection Act such as, "annoyed, tormented or pursued." Nor is it necessary to show scientific proof that the conduct is bothersome. But, it is essential that we justify and explain the basis for any regulatory action if the lawyers are going to be able to defend the reasonableness of the regulation. Thus, it is important to spend time on this topic.
The third question becomes: What is it that the whales are bothered by? We could say with certainty that they were bothered by the captures in the past. But, we also know that the captures have been discontinued. In listening to the discussion today, we have heard all kinds of things that may bother the whales: sound and noise, surface movement of ships, fuel from vessels, PCBs, pulp mill discharges, El Nino, lack of food, declining salmon stocks, salinity of the waters, or chasing by whale watchers. We know that whatever it is, it involves complicated biological factors and the interaction of human factors. We also know that from looking at other populations, such as tuna and dolphins, this interaction is exceedingly complicated.
Next we ask: What is the conduct to be regulated? It is very important that this conduct be described specifically. That is because to be enforceable it cannot be vague. In describing the conduct, it is important that exceptions be made too. There is no requirement, as some have suggested, that all vessels be treated identically. As we did with the jetski ordinance, it may be appropriate to make exceptions for emergencies, protection of property, law enforcement or certain vessels such as the ferries.
Now, there is some conduct that will create a problem for any local ordinance. And, there must be exceptions for this type of conduct. For example, under the U.S. Constitution, local ordinances cannot regulate interstate commerce or foreign commerce. This means Canadian whale watch groups, to the extent that they are engaged in foreign commerce, may be permitted or allowed to use our waters. As an example, we have provided enforcement guidelines for our jetski law in which we ask the operator of any jetski where they are coming from or going to, and if they name a port in Canada or a neighboring state, we allow them to pass. There may also be restrictions on the regulation of traffic in the border straits as part of treaties between the United States and Canada. If so, it would be up to Congress, not local government to deal with this topic.
Another exception is preemption under state or federal law. Where an activity has already been regulated under state or federal law, there may not be any room for local regulations. Under state law, the operation of certain vessels may be allowed. Certainly, this would probably apply to the Washington State Ferry and prohibit local regulations that apply to the ferry. Also, to the extent that the conduct under the Marine Mammal Protection Act overlaps with the proposed regulation in terms of a distance requirement of 100 yards, that may be pre-empted by federal law.
Finally, we would have to consider the public trust doctrine. In the jetski case we successfully argued that jetskis are recreational; local uses that are not a traditional public use of the waterways. But, if you are looking at the type of destinational vessel used to watch whales, a different conclusion might be reached. I'm not saying the public trust doctrine prohibits local regulations, but it would certainly have to be something that is examined closely.
Now, there are other topics regarding enforcement of these laws, and given that I am out of time, it would be better for Sheriff Cumming to discuss these. There are concerns with the limited resources available for enforcement, problems in identifying offenders without officers in the field, and the problems in turning volunteer enforcement groups such as Soundwatch into the eyes and ears of the sheriff's office.
In conclusion, I would state that the regulatory approach should follow the behavior of the whales. The whales don't know the international boundaries and neither should the regulatory approach. That said, a non-governmental organization such as Soundwatch or the Canadian counterpart, M3, should be expanded and take a leadership role. Moreover, I think that both of these groups should recognize and make a broad public educational campaign on all of the factors that may bother the whales, and not simply maintain a distance between whale watchers and whales. I would encourage support for Soundwatch and M3 to expand their efforts along this line.
Summary and Notes from Proceedings of Whale Workshop on county Web site
Sharon Kivisto
and
Matt Pranger
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