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Laws fail to protect marine mammals from harassment

By Andrew Perala

6th April 2003

West Hawaii Today

Laws intended to protect marine mammals are ineffective and unenforced, leaving resident spinner dolphins in West Hawaii subject to potential harassment.

Nocturnal feeders, spinner dolphins own the night, eating a squid per minute. But in some West Hawaii bays, spinners have lost the day, unable to rest after twice - nightly feeding forays, said scientists researching the state's smallest dolphin species.

Government officials acknowledge they're powerless to enforce existing laws like the Marine Mammal Protection Act that could halt ongoing human intrusions of spinner pods during daytime rest periods.

Federal law prohibits people from approaching marine mammals closer than 50 yards; for endangered species like the humpback whale, the distance is 100 yards. However, no citation has been issued on this island for more than a decade and state officials claim they have no authority to enforce federal law and have no similar state laws to buttress the federal measures.

One of the prime resting areas for the spinners is Kealakekua Bay, where a spinner population of 300 - 700 animals shares the water with humans.

After complaints in the mid - 1990s from area residents, the state's Department of Land and Natural Resources banned kayak – rental companies from commercial operations at the bay's landing. "It is legal, however, for the companies to rent to people who then take the kayaks into the bay - on their own," said Nancy Murphy, DLNR's Hawaii district manager for boating and ocean recreation.

Kayak companies require customers to sign a stringent set of rules and waivers, which has controlled the majority of kayak rental clients from harassing mammals, claimed the DLNR. But other businesses openly advertise "swimming with dolphin" excursions that rarely enter the waters of Kealakekua Bay.

"Dolphins and whales are just so much more intelligent than people," said Joan Ocean, whose Kona - based Dolphin Connection company has scheduled six multi - day "seminars" this year in Kona, each with up 20 paying participants.

Her company, through its Web site, makes claims of supernatural connections between humans and some marine mammals.

"I'm happy to share my experiences with dolphins," Ocean said. "They allow me to swim with them in their pods." Part of the experience, for which participants pay $1,650 each, is "communing" with the dolphins before leaving shore "to ask for their permission to visit with them."

Ocean said she does not need to communicate with authorities about the provisions of the federal Marine Mammal Protection Act. And she said she does not recall any legal encounters with the National Marine Fisheries Service. But according to the National Marine Fisheries Service, Ocean was convicted and fined $1,000 in 1992 on two counts of dolphin harassment in Kealakekua Bay.

"That operation took six special agents to set up," said Ray Sautter, the Long Beach, California - based special agent in charge of Hawaii and all other Western Pacific waters under U.S. purview. "Two on the pali with binoculars and video, two on a boat and others in the water."

Since then, no other Big Island citation has been issued, Sautter said.

"Are they breaking the law?" Sautter asked rhetorically. "It isn't that clear - cut. I've had cases brought up before administrative law judges who say, "If the whale doesn't like it, why doesn't the whale just leave?"

"It's their choice," Ocean claimed. "They have ways of letting us know if they want to play. Dolphins really like being with people."

Scientists disagree strongly with Ocean's "hug a dolphin" position.

"It is so important for the spinners to have their rest periods," said researcher Ania Driscoll - Lind, who with her husband is studying spinner dolphin populations along the Kohala Coast under the auspices of the National Marine Fisheries Service. "Especially for the females who, for most of their adult lives, are either pregnant or have newborns," she said. "When feeding, a number of females take care of all the calves, and that leaves them calorie short."

Researchers have learned spinners make two round - trips of several miles each night to deep water to feed, Driscoll - Lind said. "That's why it's so critical for them to be able to rest undisturbed," she said. The time between 10 a.m. and 2 p.m. is a particularly important rest period, she said.

Sautter said there are no federal agents based on the Big Island, just two investigators and a uniformed officer statewide. Most of their time is spent monitoring the humpback whale sanctuary. They also investigate illegal trafficking in shark fins and sperm whale teeth.

"Do I wish I could do more? Sautter asked. "Of course. Basically, the whole thing stinks."

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