Part Three: 'They Can't Eat And They Can't Play'; busting the Whale Watch violators

Allison Lance grabs her megaphone and joins other animal activists in confronting whale watch boats that get too close to the endangered Southern Resident Orcas.

“Attention whale watch operators and customers, you are breaking federal law by pursuing an endangered species, specifically you are in violation of the Endangered Species Act of 1973 Section 9," shouts Lance.

Federal law clearly states it is illegal to "pursue, harm or harass" the threatened killer whales but activists charge that's what these crews do for a living.

"You should leave these whales in peace.  You have no right to pursue them. It's like somebody coming into your house and watching every move you make.  They can't eat, they can't play, they can't make love," shouts Lance.

On our whale watch trip from Victoria, B.C., our captain explained how he is able to guarantee customers will see whales.

"We kind of know where they were the night before.  We also try to stay in touch with these planes, with ferries and bed and breakfasts.  Once they find them they call and share it with everybody," said our captain.

Washington Department of Fish and Wildlife Sgt. Rich Phillips patrols the San Juan Islands in search of violators.

"We'll observe the boats and see what they're doing, how they're acting. Right now we've got at least 16 commercial boats within a mile of us or less right here watching this group of whales," says Sgt. Phillips.  "We've got video cameras and still cameras to try and document the violations."

Last year, the Department of Fish and Wildlife issued warnings to scores of boaters who got closer than 100 yards, but only three were hit with tickets and the $500 fine.

One was a private boater from Deer Harbor who drove right up to one of the animals.  The two others were Canadian whale watch companies, “Seafun Safari” in Victoria and “Seaquest Adventures” in North Saanich, B.C.  Incident reports obtained by Q13 FOX News show the driver of the “Seafun Safari” boat admitted he felt pressure to provide a "good show" and that commercial operators are “motivated by tips from happy tourists”.

"It was an unfortunate lack of judgment," says Shane Aggergaard in response to the report.

He runs a whale watch company in Anacortes and is also past President of the Pacific Whale Watch Association, a group representing 30 tour owners in Washington and Canada.  He feels the threat to whales is overblown.

"It's gotten so much mellower and so much more respectful.  I think the whales are going what?  Huh? You got a ticket for that?  He just stopped sitting there watching and we just swam over to him," says Aggergaard.

Mark Anderson is the founder of the group "Orca Relief".  He believes the entire ocean going whale watch industry is in violation of the Endangered Species Act and is a persistent and active threat to the future of the three pods that live in the waters off San Juan and Vancouver Island.

"It's almost like they can't help themselves.  If there's not enforcement around there is so much pressure to come closer, come closer," says Anderson.

Whale researcher and University of Washington Professor Sam Wasser says it’s absurd that business owners claim they’re not doing any harm when scores of studies found boat noise has a serious and damaging impact on whale behavior.

"When the killer whales come in the summertime they're swamped by boats, commercial boats, private boats.  Are they a whale? Do they spend their life doing what a whale does?  Do they know the pressure the whales are under? It's kind of absurd people even offer these suggestions but they always will," says Wasser.

In spite of the mountain of research and species protection rules, as things stand right now, law enforcement can only do so much.

"If you have one observation of a boat too close to a whale they can obviously say they didn't know and that may be true.  They can claim their motor broke down or they ran out of fuel," says Sgt. Phillips.

"So is that boat getting too close?” asks Q13 FOX News reporter Dana Rebik.

“It’s getting perilously too close, but he's just drifting in the water not trying to intercept them.  That's where it becomes a lot of discretion.  You could technically violate but they're holding still right there," says Phillips.

Sgt. Phillips has his hands full as looking after these Orcas is only a small part of his responsibility.  Patrolling these waters involves enforcing all maritime law, from pleasure boaters to commercial fishing boats.   Thanks to budget cuts, he doesn't have a lot of help.

"In a perfect world how many people would you like to have?” asks Rebik.

“It would be between seven to ten officers plus a Sgt.  Right now we've got three officers.  We've got more boats than we have officers," says Phillips.

As Chair of the Senate Subcommittee which oversees the National Marine Fisheries Service, Senator Maria Cantwell says existing law must be enforced and that the government needs to fund its Orca Recovery Plan.  The Senator says $15 million will get the ball rolling.

As for boat noise, regulators are working on doubling the required buffer zone around the orcas from 100 to 200 yards and making the entire west side of San Juan Island off limits to whale watchers from May to October, the height of whale watching season.  For some scientists, that's still not enough

“I requested initially and still would like to see a five year moratorium, but at least 1000 meters from the whales," says Dr. Birgit Kriete.

Another solution is land-based whale watching from places like Lime Kiln State Park on San Juan Island.  It's one of 20 sites in Washington that are part of the "Whale Trail" project, encouraging people to observe the orcas safely, from dry ground.

"It's absolutely amazing.  They come right here where the bull kelp is and leap out of the water and do tail lobs.  It's fabulous.  When the orcas are here the view is better than if you're on a whale watching boat," says whale watcher Kelly Alan.

NMFS still has to make its recommendations on the proposed regulations to NOAA.  Then NOAA will send a recommendation to the Department of Commerce which will make the final decision.  NMFS hopes to have a decision by the start of the 2011 whale watch season in May.  The public comment period on the new regulations has passed, but you can write to Senator Cantwell and Commerce Secretary Gary Locke at and and let them know what you think ought to be done about Orca protection.


Below is a response from Senator Maria Cantwell (D-WA) to our questions on Orca protection.

Q: Are you aware there are currently four missing Southern Resident Killer Whales, three of which are breeding age males?  The latest numbers show the population for J, K and L pods is down to 84 Orcas and scientists say the whales are starving to death.  Ken Balcomb from the Center for Whale Research says it’s a certainty the Orcas will be extinct in 100 years if not sooner if something more isn’t done to protect them.  Where do the Orcas fall on your priority list?

A: They’re a major priority. What is happening to the orcas is a sign of the overall health of the entire Puget Sound, and the Puget Sound is clearly in trouble. So when we talk about the orcas and the health of the Puget Sound, we really can’t separate the two. They’re intertwined. Unless the orcas have a solid food source, clean water, and a healthy environment, they’re going to be in trouble. One of the things I’m concerned about moving forward is whether NOAA and the federal government are giving orca recovery the high priority it deserves from a budgetary perspective. The federal government’s orca recovery plan clearly spells out the costs and schedule for getting this species back on track, including specific actions and priorities. The federal government’s plan would cost just under $50 million over 28 years, $15 million of which they need in the first five years.  NOAA’s budget requests to Congress, however, have fallen far short of that need.   So important work that needs to get done to help save this species simply isn’t happening because the federal government isn’t making the investment.

Q: These animals are on the Endangered Species List which specifically prohibits “any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal by causing disruption of behavioral patterns including feeding”.   The Orcas are also protected by the Marine Mammal Protection Act.  Despite that, scientists say they are starving and dying.  What do you think about that?  Do you think the general public expects better protection of these animals once they are on these lists?

A: I think the public does expect better protection of orcas once they’re listed, and they’re right to expect that. I expect it, too. It’s what the law demands. The Marine Mammal Protection Act and Endangered Species Act are meant to provide greater protections against both direct and indirect threats. To save the orcas in the Puget Sound, this means that we need to look at everything: salmon populations, rockfish populations, vessel traffic, water quality, chemical toxins, and the overall health of the Puget Sound.  

Q: Are you aware there are seven independent studies from researchers at NOAA, NMFS, and the University of Washington that all conclude boat noise is extremely detrimental to the Orcas, specifically whale watch boats that pursue and observe the whales for half the year.  The studies found boat noise can interfere with the Orcas sonar and echolocation used to communicate, navigate and hunt prey?  NMFS is considering new regulations that would make boats stay twice as far from the whales, from 100 to 200 yards.  Boats would also be prohibited from entering a “no-go zone” on the west side of San Juan Island from May-September.  Do you feel it is important for NMFS to put these regulations in place and why?  How have you stayed abreast of this process?  Do you think these regulations go far enough considering the severity of the Orcas’ situation?  If no, why not?

A: I am aware of the research that has been done in this area, and in fact helped secure much of the necessary funding to conduct these studies (see The National Marine Fisheries Service’s proposal for new regulations is important exactly because the science points to vessel traffic and noise as a problem. Regarding whether the proposed regulations go far enough, we need to rely on the scientists. The regulations should be based on the best scientific data we have available.  Any new rules should result from a thorough process that involves both rigorous science and extensive public input. People should be able to air their views on the importance of protecting the orcas and what they think about the agency’s proposed rules. But at its core, any new regulations should be based on the science of what the orcas need for their populations to recover.

Q:  According to Washington Department of Fish &  Wildlife Sgt. Rich Phillips, enforcement is difficult to achieve because there are only four officers working in the San Juan Islands and “Orca patrol” is only one of their duties on the water.  Phillips says it would take at least 10 officers to adequately patrol this area and that now he has “more boats than officers”.  Do you feel the budget for Fish & Wildlife needs to be increased to give them the manpower they need to protect this endangered species?

A: Enforcement is a critical piece of the puzzle here, and it’s an area where we consistently come up short. I can’t comment on state budgetary issues. On the federal end, NOAA’s enforcement arm in the National Marine Fisheries Service is chronically underfunded, understaffed, and overwhelmed. And it is a challenge to boost their resources when the public are demanding government cut spending, not increase it.  The NOAA enforcement program is also going through a period of major turmoil and upheaval right now, after the Department of Commerce Inspector General conducted investigations into the program and revealed huge management problems – mostly on the east coast. Enforcement is an area where we definitely need to do much better.

Q:  Orcas are iconic to Washington, an emblematic animal used on billboards, signage, products, logos, etc.  What would it mean to our state if this animal becomes extinct?  What do you plan to do as an elected leader to make sure this doesn’t happen?

A: It would be a huge and devastating loss, and I’m completely dedicated to making sure that never happens. There are several pieces of legislation that I’ve authored or cosponsored and helped support that would take steps towards addressing some of the key problems facing the orcas:


    Below is a response from Governor Christine Gregoire to our questions on Orca protection.

    “Our orca whales are a living symbol of our Pacific Northwest , and we’re making it a priority to protect them so they’re here for future generations of Washingtonians.

    In 2008, we enacted a state law that provides additional protection from vessel disturbances – beyond that offered by current federal law. The law ensures that boats and other passenger vessels keep ample distance between them and an orca whale to protect them from impacts from vessels, and provides guidance to educate the public on how to reduce the risk of disturbing these important marine mammals.

    Our state Department of Fish and Wildlife is working with the National Marine Fisheries Service on a recovery plan for our southern resident orca population. And our Fish and Wildlife officers are actively enforcing whale-protection laws as they patrol our marine waters. Currently, 10 officers are assigned to the northern Puget Sound region, with four officers dedicated to marine patrols. Officers have issued hundreds of warnings and several citations to boat operators who violated state and federal laws.

    Orcas depend on the salmon, so our salmon-recovery work, our habitat restoration, and our cleanups of contaminated areas of Puget Sound also are keys to saving the orca.

    Since 1999, our Washington Salmon Recovery Funding Board has invested $156 million in state grants for more than 600 projects to help communities recover salmon in the Puget Sound region. The Puget Sound Partnership’s Puget Sound Action Agenda outlines the immediate and long-term actions necessary to restore and protect Puget Sound, including our orcas and salmon.

    In addition, the Department of Ecology is cleaning up contaminated sites, acquiring critical habitat, helping to restore upper watersheds where salmon nest and spawn, and working to block sources of toxic pollution in storm water from our streets and roads and other paved surfaces.

    Through actions like these, we are working hard so that these wonderful creatures not only will survive, but thrive in Washington’s marine waters.”


    The Whale Trail