Why Does A Humpback Whale National Marine Sanctuary Advisory Council Member Want The Whales Removed From The Endangered Species List?

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By Anthony Pignataro

It’s hard to imagine these days–especially if you’re standing on any south or west-face Maui beach in the winter for more than a minute–but even just 50 years ago there were fewer than 1,500 humpback whales in the North Pacific. Whaling, which devastated whale populations around the world, had largely been banned around the world, but as a species, humpbacks hovered near extinction. It’s been on the official endangered species list since 1973, when President Richard Nixon signed the Endangered Species Act into law.

Today, the situation for humpbacks is dramatically different. Today, biologists estimate there are 20,000 or more of the whales swimming in the Pacific, with another 60,000 or so spread throughout the rest of the oceans. The humpbacks’ recovery is a conservation success story. In fact, it’s so apparent that a new group of Hawaii fishermen have asked the National Oceanic and Atmospheric Administration (NOAA) to remove humpbacks from the official list of endangered species.

“We believe that the population of these whales has fully recovered,” Phil Fernandez, the president of Hawaii Fishermen’s Alliance for Conservation and Tradition (HFACT), wrote in a recent news release. “When an endangered or threaten[ed] species recovers, especially to the extent of these humpback whales, it needs to be celebrated. Otherwise the integrity of the Endangered Species law is compromised.”

On paper, Fernandez makes a compelling case. The narrative portion of his petition runs 44 pages (including a 10-page bibliography) and is packed with tables and references to scientific research. Among other evidence, the petition points out that humpbacks in the North Pacific have been protected by an international treaty on whaling since 1966.

Fernandez himself has whale conservation credentials. In fact, since 2010 he’s been a member of the advisory council for the Humpback Whale National Marine Sanctuary (which is administered through NOAA). In fact, last year he was the sanctuary’s Volunteer of the Year.

But others, though thrilled with the whales’ increasing population, aren’t nearly so quick to declare victory. In fact, they note that just because whales are close to their pre-whaling population, that doesn’t mean they’re out of danger.

“We should celebrate when animals come off the list, like the bald eagle,” said Greg Kaufman, founder and president of the Pacific Whale Foundation. “When we successfully de-list an animal, we see what has happened to allow them to sustain themselves. With whales, we have increasing problems with marine debris and ship strikes–these things are increasing. You won’t find a scientist who says oceans have less noise or debris today.”

The Hawaiian Islands Humpback Whale National Marine Sanctuary is charged with protecting the whales and their habitat. But in the matter of potentially taking whales off the endangered species list, sanctuary spokesperson Christine Brammer said they are basically staying neutral.

“Currently humpback whales are protected by a variety of laws including the Endangered Species Act, the Marine Mammal Protection Act and state wildlife laws,” read a statement sent to Brammer. “Should this thorough review determine that Hawaii’s humpbacks will be removed from the list, they will remain protected by the Marine Mammal Protection Act, State of Hawaii wildlife laws, and the Hawaiian Islands Humpback Whale National Marine Sanctuary.”

Brammer added that her organization was aware of HFACT’s petition before it was filed, but offered no further details.

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The whole question of whether humpback whales have recovered to the point that they no longer require the attention and protection afforded them under the Endangered Species Act hinges on how many whales existed before humans began devastating their pods with harpoons. Unfortunately, the number of humpback whales that existed before whaling isn’t exactly known.

A widely used estimate is 125,000, scattered through all the oceans. Since there weren’t any of what we’d call accurate counts two centuries ago, the best historian Eric Jay Dolin could say in his book Leviathan was that when the first whalers reached the Pacific in 1789, they found an ocean “full of whales.”

“We are completely uncertain of what the original stock was in the North Pacific,” said Kaufman. “It could easily have been 70,000 animals. If that’s the case, then ‘recovery’ would be 30,000 to 40,000 animals in the North Pacific.”

Though it’s likely the large numbers of humpbacks we see spending the winter in Hawaiian waters is a relatively recent phenomena, whaling itself played a significant role in the development of the state. After all, Honolulu and Lahaina were the most important whaling ports in the Pacific during the 19th century. What’s more, huge numbers of Hawaiians signed on as whaling ship crewmembers. And this “whaling element,” as Dolin quotes historian Ernest S. Dodge as writing, brought sexually transmitted diseases and liquor, which proved “disastrous for the native population.”

The American, largely missionary population apparently didn’t much like things either. “The truth is, the whole nation is rotten with licentiousness,” Dolin quoted one observer as writing. “Men hire out their wives & daughters without the least scrupple, for the sake of money. It is computed by Dr––of Lahaina that at the port during the whaling season there are upwards of 400 instances of intercourse with sailors daily… [One] establishment at that place is a perfect sink of iniquity. They are accustomed to have dances of naked girls for the entertainment of their customers the whalemen.”

Yes, for much of the 19th century, the slaughter of whales meant big business for Hawaii. And while the U.S.–and much of the rest of world–has been out of the whaling industry for a long time, whales are still very important to Hawaii, both in terms of tourist dollars and in the world of environmental conservation. They are also part of a massive bureaucratic network that includes local, state and federal authorities.

“The system appears to be broken,” said Fernandez when talking of the myriad agencies involved in the protection of marine animals. “The integrity of the ESA [Endangered Species Act] is falling apart.

Fernandez said he helped form HFACT with four other Hawaii fishermen to bring their perspective to marine issues. “When you go to public hearings, testify at the Legislature, you bump into the same people,” Fernandez said when asked the five fishermen of his group met. “The same people testify all the time. We were also involved in a lot of advisory councils. We had dinner together in Honolulu three years ago.”

Saying it took a couple years to “formalize” their group, Fernandez said the organization now tries to bring “the fishermen’s perspective” to various marine issues around the state. One of the most important of these issues, he said, is the constant attention NOAA is paying to new endangered species.

“We were getting in a lot of public hearings on the endangered species list,” he said. “One on corals came up. There’s the monk seal issue, too. Several other species–the damselfish and clownfish, too. What got the fishermen’s attention was the false killer whale.”

According to Fernandez, the number of new species being added to the endangered list is actually hurting NOAA.

“Every time you turn around, there’s something with ESA,” said Fernandez. “There’s a group called the Center for Biological Diversity that has backed most of these. These guys are a bunch of attorneys, and it looked like they were throwing paperwork at NOAA, which said they were getting overwhelmed.”

Not surprisingly, Miyoko Sakashita, a spokesperson for the Center for Biological Diversity in San Francisco, disputed Fernandez’s characterization.

“I too wish Hawaii didn’t have so many endangered species,” she said. “I think the humpback is an interesting [case] because of the steps it’s made toward recovery. It shows how important the Endangered Species Act is. But I’m not sure we’re in the clear yet. We need to make sure the gains that have been made aren’t rolled back. The decision to de-list should be based on science and not on a political stunt.”

In any case, Fernandez said his group decided to do something about it. “You cannot have species after species admitted to the ESA,” he said. “We have to see what we can remove.”

Fernandez said that he determined that whales had recovered to the point where they could come off the endangered species list. He said that while whales don’t impact fishermen in Hawaii, de-listing them would make a powerful point “at the political/regulatory level.”

“Laws need to have integrity,” he said.

So in early May, Fernandez and the other four fishermen of HFACT submitted an official petition to NOAA asking that humpback whales in the North Pacific come off the endangered species list. When I asked how exactly it came about, Fernandez said he wrote “most” of it.

“It was kind of a team effort,” Fernandez said. “I did most of it. I also copied other de-listing and listing petitions–I used the same format. All of the bibliography is from the Humpback Whale Sanctuary. I just built on it. If you have a library card, you can get anything. We’re not scientists, but it’s a homegrown petition.”

* * *

Fernandez’s assurances aside, it’s clear that HFACT had outside help in preparing their petition. There are substantial differences between the petition’s writing style (which is extremely academic and full of technical jargon) and other samples of writing sent out by HFACT, like the full-page advertisement for the group that is running in the May 2013 issue of Hawaii Boats & Yachts, which contains numerous run-on sentences and unclear thinking:

“In many cases, the regulations on fishing have been thrust upon fishermen because fishermen are unable or unwilling to participate in public hearings at the legislature and department levels as well as the use of bad science and in some cases no science to justify their actions.”

Now compare that to this paragraph I chose at random from the de-listing petition:

“The best available science indicates that the humpback whale population in the North Pacific is unequivocally separated spatially, genetically and morphologically from humpback whale populations in the Southern Hemisphere (Fleming and Jackson 2011). However, population structure within the North Pacific population is complex, and neither migratory patterns nor genetic evidence provide conclusive evidence for further dividing the North Pacific population into distinct segments. Therefore, NMFS should consider the North Pacific population as a discrete segment for consideration of a DPS under the ESA.”

Though Fernandez did say he showed his petition to others before submitting it to NOAA, he would not say who, beyond that they were “people in the state and federal government.”

“They were more editing than anything else,” he added. “They were not helping us on a scientific level.”

I wasn’t the only one to raise questions over who else might have had a hand in writing the petition.

“I just had a chance to read their petition, and it seems very sophisticated and detailed to have been quickly produced by a handful of fishing and casting clubs,” wrote Joan McIntyre–one of the original save-the-whales activists from the 1960s, who today lives on Lanai–in an email to me. “I wonder who wrote it and I wonder what their agenda really is, and how they have managed to pull together a scientific petition in what seems like a very short time.”

McIntyre wrote a number of books on whales, including Mind In The Waters (1975) and The Delicate Art of Whale Watching (1991). She was one of the first save-the-whales activists–in fact, she was the first woman to attend an International Whaling Commission hearing, in 1969. To say she holds strong feelings about the survivability of whales is an understatement.

“Although there have been, and are, scientific arguments for declaring the North Pacific Humpbacks no longer in danger of extinction, there are new, barely understood threats to all marine life–ocean acidification, global warming, changes in food supply, pollution–so that rushing to delist the whales at this time may be way too premature,” she said in an email. “As one of the originators of the worldwide save the whales movement, back in the late ‘60’s and early ‘70’s… I know all too well how hard it is to get protection for whales and dolphins, and how hard it is to make it stick. Delisting the Humpbacks may well open the way for renewed hunting. This is not the time to rush.”

Given that NOAA is a government agency, “rush” is something they most certainly won’t do. Since HFACT’s petition will require public hearings and additional studies, Kaufman said it will take three to five years for them to come to some conclusion.

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