News Release 2001-10
August 15, 2001
Prosecutor Says Federal Law Would Preempt Proposed County Whale Watch Rules
San Juan County Prosecuting Attorney Randall K. Gaylord announced today that federal law would likely preempt proposed County regulations of whale watching activity. "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," Gaylord added.
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 Gaylord, 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.
In a meeting with the County Marine Resource Committee today, Gaylord urged the committee to renew its efforts in improving voluntary guidelines. "The County can promote an aggressive campaign for all boaters in the San Juan and Gulf Islands to educate boaters on how to watch the whales without bothering them. Much more can be done to promote the activities of Soundwatch and its Canadian counterpart, the Marine Mammal Monitoring Project," added Gaylord.
Gaylord also called for additional efforts to lobby federal legislators on the importance of the National Marine Fisheries Service (NMFS) involvement in the research of the whale population decline. "Congress has said that protecting marine mammals is their responsibility. It is our responsibility, as local citizens, to urge those with responsibility to tackle the problem of the population decline and take action to reverse it," said Gaylord.
Gaylord said that he met with Senator Maria Cantwell and plans to meet with Representative Rick Larsen this week. "I would urge everyone interested in this crucial matter to write to their senators and representative. They need to hear from you."
In the report submitted to the Commissioners, Gaylord provided examples of how NMFS adopted the regulations regarding the watching of the humpback whales in Alaska and Hawaii. "These are good examples from which to begin. But, we need to do something that is effective now in San Juan County," said Gaylord.
For a complete copy of the Legal Analysis and Recommendations provided by the San Juan County Prosecutor, please call 360-378-4101 or email Randall Gaylord at randyg@co.san-juan.wa.us.
Randall K. Gaylord