Watercraft restriction
ruled unenforceable
A 1991 law banning use of high-speed boats and personal watercraft during humpback whale season is unenforceable because it would set aside federal laws in place to protect marine mammals, a federal judge has ruled.
The seasonal ban violates the Marine Mammal Protection Act because states aren't permitted to take actions independently of the federal government when dealing with protection of marine mammals, U.S. District Judge Susan Oki Mollway ruled.
"In the MMPA, Congress put the federal government in control of matters relating to the taking of marine mammals, recognizing that other policy considerations might at times trump the protection of marine mammals," Mollway said in her ruling dated July 9.
The law bans commercial thrillcraft such as Jet Skis and other high-speed boats in waters off of south and west Maui from Dec. 15 through May 15, when an estimated 5,000 humpbacks migrate to Hawaiian waters to breed, calve and nurse.
The law was challenged by UFO Chuting of Hawaii and Kaanapali Tours, two parasail boat operators on Maui whose businesses have been shut down every winter by the seasonal ban.
Dennis Niles, an attorney for the companies, said federal laws to protect whales remain in effect and there is "no cause for concern that the whales have less protection because of the court's ruling."
He noted that the Marine Mammal Protection Act already specifies that no vessel can approach within 100 yards of a protected marine mammal and parasail operators take strict measures to follow those rules.
A spokeswoman for the Department of Land and Natural Resources, which is responsible for enforcement of the boating rules, said Friday that state attorneys are studying Mollway's ruling and have not decided whether to appeal.
In her decision invalidating the state law, Mollway said the state can enact laws for protection of marine mammals but "must seek approval from or cooperate with the federal government."
State Sen. Rosalyn Baker, D-Honokohau-Makena, said the ruling could invalidate any state designed to protect marine mammals. She has asked U.S. Rep. Ed Case, D-Hawaii, to review the ruling and investigate whether action can be taken to clarify the rights of states in the Marine Mammal Protection Act.
Baker said she believes there are several threats to whales posed by the decision.
With parasail operations, boat captains may be aware of the restriction on approaching whales, but when moving at high speed towing a customer, "they can't just stop because a whale is in the area," she said.
The ruling also opens the door to other kinds of commercial thrillcraft and high-speed boating operations that do not provide the safeguards employed by parasail operators, she added.