A voter initiative has been filed to increase the distance whale-watch boats must keep from endangered southern-resident orcas — followed immediately by a lawsuit this past week from whale-watch companies to keep the measure off the ballot.
The San Juan County initiative, aimed for the November ballot, would impose a new restriction on whale-watch boats and other vessels effective Jan. 1. The initiative would create a 650-yard vessel-free protected area around endangered southern-resident orcas while the whales are in San Juan County waters, with exemptions for law enforcement, research and treaty fishing boats.
Backers have until July 8 to get the 1,635 signatures they need to get on the ballot.
The proposed ordinance would be stricter than a new law just enacted by the Washington State Legislature and signed by Gov. Jay Inslee. That difference is at the core of the legal dispute over the initiative.
Washington’s new law imposes a protective oval around southern residents of 400 yards when following a whale, and 300 yards when approaching from other directions.
In their suit seeking to keep the initiative off the ballot, filed May 20 in the Superior Court for Skagit County, opponents argue local governments cannot enact a law when the state has already adopted its own policy. The suit was filed by Pacific Cruises Northwest, Inc., San Juan Safaris; Island Adventures, Inc.; and Puget Sound Express. All are for-profit whale-watch tour operators.
Named in the suit are San Juan County; F. Milene Henley, in her official capacity as county auditor; Southern Resident Protection, the political campaign committee behind the initiative; and Sorrel North, sued as an individual. That was news to the 60-year-old grandmother, former ferry dock worker and 40-year Lopez Island resident, who also is the spokesperson for the initiative.
“I’ve never been sued before,” North said by phone, sounding a bit taken aback.
North said she has never been politically active before, and still wouldn’t call herself an activist: She was personally, deeply touched last summer when mother orca Tahlequah carried her baby that lived for only one half-hour throughout the Salish Sea for 17 days and more than 1,000 miles.
North and other Island residents have been gathering regularly ever since to discuss the plight of the southern residents, and what they as ordinary citizens can do to help.
North said she and others were disappointed when not a single legislator would take up a proposed moratorium on boat-based whale watching of the southern residents proposed by Gov. Jay Inslee and the governor’s Task Force on Orca Recovery. Vessel noise and disturbance by boats is one of the three main threats to southern orca survival identified by scientists.
Underwater noise can mask the sounds whales need to hear as they forage, including their communication with one another, as well as the bounce back of echolocation clicks the orcas use to hunt their prey. The whales’ primary food, chinook salmon, is already scarce, and interference with their hunting by vessel noise and disturbance adds to the orcas’ troubles.
“It’s a moral imperative; something has got to happen now,” said North, adding that the population trends for the southern residents, with only 75 members left, are alarming. The decreasing number of reproductive-age females makes protection of the whales urgent, she said.
North said she gets a warm welcome with the initiative petitions. “People don’t even want to hear all the details; it’s just, ‘Finally, somebody is doing something. Where can I sign?’ “
Opponents want to stop them cold.
“Our view is it cannot be enacted,” said Frank Chmelik, attorney for the plaintiffs, based in Bellingham. “A local ordinance can’t allow something that is disallowed by state law, or disallow something that is allowed by state law. The state has already acted; it is not open to the counties, cities and towns to make it more restrictive.”
He said this case is different from an earlier instance in which San Juan County in 1995 enacted its own ban on Jet Skis in county waters, upheld by the state Supreme Court in 1998. In that case, the state had a requirement to register Jet Skis, but no laws on the books as to their operation.
Not so with whale-watch boat tours, with new rules on the books, and more regulations yet to come from the state Department of Fish and Wildlife.
While the suit was filed to contest legality of the measure, opponents also object to the 650-yard limit on whale-watch tours. “That is essentially a moratorium, which was declined in the Washington legislative process,” Brian Goodremont, owner of San Juan Safaris, said by phone.
He said whale-watch tours provide public education about the orcas, as well as a heads-up to private boaters and researchers that whales are in the area.
And while the endangered southern residents are only a small part of the tours’ business today, that could change, depending on salmon runs and the whales’ travel patterns, Goodremont said. Today, most whale watching is of other species that are abundant, including gray whales, and Bigg’s, or transient, killer whales. Even humpbacks, with their graceful, slo-mo dives and majestic flukes, have made a comeback.
North said she was aware that legally the initiative would be precedent-setting. “But we feel that because we are not trying to make a restrictive law less restrictive, there is nothing in Washington state law that says you can’t do that,” North said. “We are willing to take to the Supreme Court to find out.
“The way we look at it, we are just going full-steam ahead.”