Plan for New Whale Rules Has Critics Spouting Off

To Don Wilkie, a federal proposal to keep oceangoing vessels at least 100 yards from migrating whales is a good example of government attempting to fix something that isn’t broken.

“The guidelines that exist now are fine,� said Wilkie, director of the Scripps Institution of Oceanography’s new Stephen Birch Aquarium-Museum, one of several Southern California museums that regularly sponsor whale-watching trips. “It’s simply a question of enforcing them . . . (but) if you’re not enforcing them, they’re meaningless.�

Wilkie isn’t alone in his criticism of the plan by the National Marine Fisheries Service. It has also drawn stiff opposition from many Southern California boat captains and naturalists.

While there is near-universal agreement that marine mammals deserve protection from well-meaning--and, occasionally, from mean-spirited--vessel operators who venture too close to the whales, opinions vary on how to ensure that whale watchers don’t interfere with the mammals as they make their long migration from cold waters in the north to San Ignacio Lagoon in Mexico and back again.

The fisheries service contends that the new regulations will improve whale protection by making stricter enforcement possible. Critics reply that the NMFS will never have the manpower needed to safeguard the whales, which encounter thousands of boats during their trek along California’s coastline.

In Southern California, the proposed regulations would cover private vessels and about 75 charter boats that carry whale watchers during the winter, when gray whales pass close to land on their annual journey to and from their breeding and calving grounds in Mexico’s San Ignacio Lagoon.

The regulations would also protect porpoises, sea lions and other marine mammals that live in U.S. waters off the East and West Coasts and Alaska and Hawaii.

Boat captains view the proposal with dread, said Bob Fletcher, director of the San Diego-based Sportfishing Assn. of Southern California, which represents charter boat owners and operators throughout the region.

The 75 charter boats that carry whale watchers generate “a pretty good chunk of their revenue� from the seasonal trips, Fletcher said. Captains don’t need additional regulations, he said, because they already realize it’s not good for business if they needlessly alienate the migrating whales.

Fletcher said captains see no need to go beyond the NMFS guidelines that were established in 1980. But fisheries officials say those guidelines, which include stiff fines and the threat of imprisonment in severe cases, have proved difficult to enforce.

The existing “guidelines are nothing more than our effort to (help people) interpret what we view as things that would cause harassment of these animals,� said Jim Lecky, chief of the NMFS’ Los Angeles-based Protected Species Division. “What we want is a stronger tool that will allow us to enforce our rules . . . when vessel operators out there are deliberately getting within very close distances to animals.�

Each year, the understaffed federal agency cites a handful of boaters for failing to remain at least 100 yards from whales. But because of how the guidelines are written, enforcement is very difficult, Lecky said.

If it were simply a matter of documenting unsafe boat operation, enforcement would be relatively easy, he said, because witnesses usually provide an accurate account of a boat’s transgressions.

But successful prosecution depends on witnesses also testifying as to whether the boat forced a whale to change its normal migratory behavior, Lecky said.

The new regulations call for boats to remain at least 100 yards from whales, but they would drop the difficult-to-prove determination that a boat’s actions forced a whale to change its normal behavior. They would also carry stiff fines and the threat of imprisonment in severe cases.

New regulations make little sense to longtime boat captain Ed McEwen Sr., whose San Diego-based boat, the Pacific Queen, carries whale watchers on nine-day trips to San Ignacio Lagoon. Fifty years on the water--including 22 seasons at San Ignacio--has taught McEwen that whales, not their two-legged relatives, usually determine if and when the species will make contact.

“Some whales will let you get 100 yards or 50 yards from them, while others won’t let you get anywhere near that close,� McEwen said. “All whales are different. . . . They’ve got different personalities, just like people. Some are very friendly, some are aloof.�

Whales occasionally will sound--dive deep into the ocean--if an approaching boat proves to be irritating, McEwen said. Others will swim faster or alter their course to avoid contact.

But curious or friendly whales will often gravitate toward the vessels, McEwen said. On occasion, they’ll pass under boats repeatedly. Some will even rub up against the hull to remove barnacles from their backs, he said.

Instead of additional regulations, McEwen said, he wants more education aimed at giving landlubbers a deeper understanding of marine mammals.

“It makes more sense to try and get the public as knowledgeable as possible about the ocean and life in the ocean,� said McEwen, who recalls seeing whaling vessels tied off in Long Beach as a youth. “You can see that people are more informed (about whales) than they were a few years back . . . but it’s the inexperienced people who are causing the rest of us a lot of grief.�

Margie Stinson, a biologist who accompanies the Pacific Queen on San Ignacio Lagoon trips sponsored by the San Diego Natural History Museum, believes that “marine mammals have to be protected by legislation because the good thoughts of people are very nice but not enforceable.�

But Stinson also believes that even if new regulations are adopted, increased education is necessary because manpower and equipment constraints will continue to make enforcement ineffective.

Wilkie also argues for increased education, both for professional skippers and Sunday sailors.

“My guideline is that you can get reasonably close,� he said, “but what you can’t do is (navigate in a way that would) force the whale to change its behavior.�

Powerboat owners and professional skippers “have to be told how to be more in tune with nature . . . how to be sensitive,� Stinson said. “On the water you see a whole range . . . even among professional captains, because there’s a learning period involved with learning how not to disturb a whale . . . and yet how to be close enough to be able to view it.�

Naturalists also worry that stricter regulations could alienate the very public whose support is needed to ensure the survival of marine mammals.

“People need to be close enough to be able to identify what they’re looking at,� said Wilkie, whose museum will sponsor about 20 whale-watching trips during the coming season. “If all they see is a speck on the horizon, it’s meaningless.�

And, while the proposed NMFS regulations are designed to make enforcement easier, critics contend that a blanket rule won’t protect all marine mammal species along both U.S. coasts and off Alaska and Hawaii.

“That won’t work, because different species of whales and dolphins have different behavioral systems,� Stinson said. “You can’t just give one set of guidelines or a single law.�

Boat operators and biologists also contend that the NMFS’ proposal will penalize boat operators who inadvertently move closer than 100 yards to whales. The existing guideline is often breached because whales, porpoises and sea lions don’t always heed mankind’s rules of the road.

“Porpoises view a moving boat as a toy,� said Larry E. Mebust, a pilot who serves as an aerial spotter for the Long Beach-based whale-watching fleet. “They ride the bow wave and surf in the wake. . . . If you stop the boat, they get bored and go away.�

That whales seek out human contact is evident in San Ignacio Lagoon, where they “swim up to skiffs to be petted and rubbed,� Wilkie said. “In those cases, the whale is making the decision.�

Gray whales aren’t alone in their occasional desire to get close to people.

Four years ago, during a voyage off the Coronado Islands, McEwen shut down the Pacific Queen’s engines and drifted on the ocean currents with a pod of at least 50 blue whales. “We drifted with them for hours and hours,� he said. “These whales were as long or longer than our (88-foot) boat, and they paid us no mind whatsoever.�

A whale’s willingness to venture close to an oceangoing vessel depends on that whale’s personality, according to naturalists.

“Some seem to be real curious, others are comfortable quite close to the boat,� Wilkie said. “You get a variation of behavior among whales, just like the human population.�

Mebust, who has spotted migrating gray whales for the Los Angeles-area whale-watching fleet, believes that mankind and whales can coexist in relatively close quarters.

Mebust has spent 900 hours aloft spotting whales and documented more than 2,000 instances in which vessels came into contact with gray whales. In mid-December, he’ll publish a guidebook that gives professional skippers and amateurs a field guide for approaching whales.

Whales “go out of their way to avoid trouble and confrontation,� Mebust said. “They do not exhibit a fear of boats, only of being hit by them.�

When whales elect to move close to a boat, Mebust advises skippers to “let the engines idle in neutral and enjoy.�

Mebust also suggests that skippers learn which whale behaviors might signal aggressive action.

“When they feel threatened, cows with calves lash the water with their flukes by swinging the tail stock from side to side in a swishing motion,� Mebust said. “It is important for boaters to know about and recognize these behaviors because they are the only way the whale has of communicating its discomfort.�