[ OUR OPINION ]

---

Restore protection for
humpback whales

THE ISSUE The state Attorney General's Office is appealing a federal judge's ruling striking down a state law banning high-speed boats from a sanctuary for humpback whales.

HUMPBACK whales face a clamorous threat when their migration season begins in six weeks. A federal judge's ruling in July struck down a state law that prohibits the operation of commercial "thrill craft" such as Jet Skis and other high-speed boats off the coast of Maui during the whale season. An effort is needed to overturn the ruling or enact federal rules restoring the ban.

Both the state and the National Marine Fisheries Service have rules forbidding boats from approaching whales within 100 yards in the Hawaiian Islands National Marine Sanctuary. Five thousand whales spend four winter months, beginning Dec. 15, in the sanctuary to mate, give birth and nurse their calves. U.S. District Judge Susan Mollway ruled that a 1991 state law prohibiting Jet Skis and other thrill craft from the shallow waters during those months violates federal law.

The disruption is serious because whales are especially sensitive to noise -- 20 times more than are humans -- and sound travels five times faster in water than in the air. Ocean noise pollution is blamed with interfering with whales' communication and causing some to go deaf.

The state Attorney General's Office is appealing Mollway's decision but is advising state enforcement officials not to keep high-speed boats from entering the whale sanctuary. Senator Inouye, at the request of state Sen. Rosalyn Baker of Maui, has introduced a measure in an appropriations bill that would authorize the state to enact and enforce mammal protection rules more stringent than federal rules.

The state law was challenged by two parasail boat operators whose businesses have been shut down every winter by the ban. One of the operators says enactment of the Inouye provision should cause the state to reconsider the issue. He says his boats travel at less than 20 knots, about 23 mph.

Greg Kaufman, president of the Pacific Whale Foundation, a whale-watching organization, suggests that a speed limit of 15 knots, or 17.2 mph, be enforced. Federal rules do not limit the speed or noise of boats in the whale sanctuary.

If Mollway's decision is allowed to stand, veteran kayaker Richard Roshon predicts that "offshore sightings of all marine life will cease in the years to come." He proposes that the ban be not only reinstated but extended from Nov. 1 through the present curtain of May 15.

The court ruling is a strictly legal interpretation having to do with jurisdictional authority, failing to reflect environmental concerns. Its consequences are significant, requiring a change of federal law to satisfy environmental needs.