Legal battles over regulating boat traffic in an effort to protect endangered Southern Resident orca whales continue, and local companies and nonprofits say the latest lawsuit is misguided.
The litigation involves a proposal to regulate primarily fishing and whale watching boats in an area west of San Juan Island.
Representatives of each say the proposal wouldn’t help the whales because whale-watching boats voluntarily avoid the area, fishing boats are present for a short period each year, and researchers rely heavily on reports and photos of the orcas provided by naturalists aboard whale watch tours.
Some also said that, while fights over this type of regulation have emerged several times in recent years, the whales have been seen less and less in the area in question, which wildlife agencies suspect is due to a lack of salmon.
“This is just something that has been hashed out to death because the boats that are out there the most are already avoiding that area, the whales are avoiding that area, the largest issue according to a lot of biologist’s opinions is that there need to be more salmon out in that water,” said naturalist Erin Gless of Island Adventures, a whale watching company that boards trips out of Anacortes. “We’re tired of this fight.”
The Center for Biological Diversity filed the lawsuit Aug. 19 in U.S. District Court in Seattle against NOAA’s National Marine Fisheries Service.
The lawsuit claims the Fisheries Service has violated federal law by failing for years to respond to previous petitions to protect the endangered orcas and urges the formation of a whale protection zone west of San Juan Island.
The idea of the whale protection zone is to prohibit boats from 10 to 12 square miles off the island from April through September, when the Southern Residents were historically seen hunting fish in the area.
The Center for Biological Diversity’s lawsuit came on the heels of a Skagit County Superior Court ruling Aug. 15 that is keeping proposed boat-orca proximity regulation off the San Juan County General Election ballot in November.
Brett Rosson of Anacortes runs a fishing charter company and is a member of the Pacific Whale Watch Association. He contends the lawsuit, with its focus on recreational fishing and whale watching boats, is misguided.
Most area whale-watching companies already adhere to a voluntary agreement to stay out of waters a quarter mile to half mile from western San Juan Island, and fishing boats aren’t in the area for the duration of the historical April to September foraging period.
“The primary users of that area are recreational fishing boats,” Rosson said. “That area for us is our primary fishery for July through September.”
This summer, recreational fishing was opened for part of July and is scheduled to open for part of September — about two of the six months in question, he said.
“What doesn’t make sense is closing down a body of water that is not used continually by the orcas and is only used certain periods of the summer by the recreational fishermen,” he said.
Arguments over this and other proposed boat regulations have been fought before — following legal petitions from nonprofit conservation groups and recommendations from the state’s Southern Resident Orca Task Force.
Orca Network co-founder Howard Garrett said the nonprofit agrees with those who say there has been a disproportionate focus on regulating small boats, which results in unintended consequences such as private boaters, enforcement agencies and researchers being unaware of the whales’ location, which is reported most frequently by whale watchers.
“Our opinion is that the issue has been well handled by the whale watch companies and further pressure only besmirches the worthy efforts of naturalists to inform people about the issues and about proper boater behavior near whales,” Garrett said. “Far more important is the whales’ need for more salmon.”
This legal battle is the latest in a long struggle to prevent the extinction of these particular pods of orcas that frequent the Salish Sea shared by Washington and British Columbia. Despite being federally listed as endangered in 2005, the population — comprised of three family groups called J, K and L pods — has continued to decline and recently reached a low of 73 whales.
“These orcas are dying out and urgently need our help,” attorney Julie Teel Simmonds of the Center for Biological Diversity said in a news release.
The national nonprofit is joined in the lawsuit by the Orca Relief Citizens’ Alliance of San Juan County.
“The species’ alarming rate of decline in recent years means additional protections are urgently needed to prevent the orcas’ extinction,” the lawsuit states.
The nonprofit organizations that filed the lawsuit originally petitioned the Fisheries Service in 2016 to consider the whale protection zone restricting boat traffic along the largest and westernmost island in San Juan County.
Boat traffic is a concern for the whales because, according to NOAA’s own analyses, it creates underwater noise that interferes with the whales’ ability to hunt its primary food source of chinook salmon.
But fishing charters, whale-watching companies and research organizations say aiming for the west side of San Juan Island, where there is already little boat traffic due to voluntary whale-watching restrictions and limited fishing seasons, is off target. That was their opinion when the petition was filed in 2016.
“Our stance then, which is still our stance now, is that their request actually doesn’t affect us at all in terms of what we do in practice because the whale watch association has been voluntarily avoiding that area for almost 20 years,” Gless said. “Whale-watching boats specifically made an agreement not to watch whales within one-quarter mile of the west side of San Juan Island and one-half mile radius of Lime Kiln Lighthouse.”
Rosson said he thinks establishing a speed limit instead that would apply to all boats would be more reasonable regulation and more likely to garner support.
“A compromise that seems reasonable to us is a go-slow zone ... If noise is the big concern, then let’s just slow down,” he said.
It’s not the first lawsuit the Center for Biological Diversity has filed on behalf of the struggling whale population. In recent years, the organization has fought for better habitat protection and assessments of salmon availability, in that case in partnership with the nonprofit Wild Fish Conservancy.
The Center for Biological Diversity also fought, starting in 2001, for the Southern Resident orcas to be listed as endangered.