State Sen. Malama Solomon criticized the ongoing federal protection of humpback whales and said they should be removed from the endangered species list during a public meeting on the Big Island last month. 

 The chair of the Senate Water and Land Committee said that the humpback whale population has increased markedly in recent decades, causing problems for boaters and others who have to avoid hitting them. She also suggested that the National Oceanic and Atmospheric Administration needs to back off from trying to exert authority over state waters where the whales swim.

humpback whale_large

A breaching humpback whale.

NOAA

Here is what Solomon said: 

“When I started in the Legislature in the Ariyoshi administration, we had 1,000 whales going through our channels. ‘K, we are in control of those 3 million acres of water, the state of Hawaii is, not the federal government. We now have 20,000 whales that are going through our waters. You know, this poses a problem, poses a threat. We are an oceangoing state. We enjoy our marine waters. And right now, the way NOAA is set up you hit a whale, you are to blame. The whale is blameless. OK, I have a problem with that.”

(You can view the video of her comments, captured by Big Island Video News, below.)

Civil Beat has looked into three claims made by the senator: the humpback whale population has increased 20-fold, the state has jurisdiction over some 3 million acres of ocean around Hawaii where whales travel and NOAA always blames the human when there is a collision with a whale.

A Whale Explosion?

Solomon says that the whale population in waters around Hawaii has increased from 1,000 in 1983, the year she started in the Legislature, to 20,000 now.

The Big Island senator isn’t far off in claiming that there was a relatively small number of whales in Hawaii in the 1980s. A study conducted by NOAA from 1980 to 1983 estimated that there were about 1,400 whales travelling through Hawaii waters annually. 

However, that number hasn’t increased 20-fold. Rather, the current estimate of whales in Hawaii is about 10,000, according to Erin Olson, a scientist at NOAA’s Pacific Islands Fisheries Service. 

Are the Feds Overstepping Their Bounds?

Solomon also says that the state, not the federal government, has control over some 3 million acres of ocean where whales swim. 

The state does control a total of 3 million acres of ocean. However, sections around the main Hawaiian islands where whales are known to migrate, have been cordoned off as part of the Hawaiian Islands Humpback Whale National Marine Sanctuary. 

The sanctuary, is comprised of about 900,000 acres, not 3 million acres, according to government documents, and includes a mix of federal and state waters. 

“We now have 20,000 whales that are going through our waters. You know, this poses a problem, poses a threat.” Sen. Malama Solomon

Legally, the state controls waters that extend up to three miles from shore, while the federal government has authority over waters that extend from 3 to 200 miles from the shore. 

About 60 percent of the sanctuary rests in state waters, according to Malia Chow, superintendent of the whale sanctuary for NOAA.

But regardless of jurisdiction, the sanctuary is managed by both the state and feds.

In 1998, former Hawaii Gov. Ben Cayetano and James Baker, NOAA’s undersecretary for oceans and atmosphere, signed a co-management agreement for the sanctuary to advance whale protections.

“NOAA and the state will collaborate in the management of the sanctuary, including the portion of the sanctuary within the seaward boundary of the state,” according to the agreement.

Solomon acknowledged to Civil Beat this week that the federal and state governments “share joint custody” of the sanctuary, but said that what she meant was that the state has control over enforcement when it comes to federal protection of whales. 

However, this isn’t entirely correct, either. Hawaii’s Department of Land and Natural Resources’ Division of Boating and Recreation has officers who patrol the waters to make sure boaters and others aren’t harming whales. But NOAA also maintains a law enforcement division in Hawaii and has officers that investigate violations of the Endangered Species Act.

Should NOAA Fault the Whales?

Finally, Solomon says that NOAA always blames humans for collisions with whales, not the marine mammals that are increasingly taking up space in the ocean. 

Fact Check Scale

It’s a violation of the Endangered Species Act to get within 100 yards of a humpback whale, or to harm or disturb it. 

Chow says Solomon’s claim is false because a potential violator has to show intent. 

“NOAA law enforcement would not pursue a case in the event that a fisherman was out in the water and a humpback whale would just come up around them,” she said. 

There were 49 known collisions between boats and whales from 2001 to 2011, according to a scientific study published in the Journal of Cetacean Research Management.

However, a past review of records by Civil Beat found that NOAA only issued fines for Endangered Species Act violations for a handful of cases involving whales during this time period. The cases appear to involve incidents in which NOAA determined that there was some human culpability in a collision, such as sightseeing vessels getting too close to whales. 

BOTTOM LINE: It is true that the humpback whale population in Hawaii has grown in recent decades, but their numbers have not increased 20-fold, as Solomon claims — more like seven-fold.

The state does retain ultimate authority over state waters that fall within the humpback whale sanctuary, but this is much less than the 3 million acres that Solomon claims. More importantly, the state signed an agreement with the federal government to help manage all of the waters in the sanctuary for the benefit of whales.

Lastly, it does not appear that NOAA always blames humans for whale collisions. NOAA has only fined a fraction of boaters over the years who have hit whales. The cases it does pursue appear to involve incidents where humans have purposefully gotten too close to the marine mammals.

Overall, Civil Beat finds Solomon’s comments to be MOSTLY FALSE.

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