UPDATED 2/27/12 9:45 a.m.
It wasn’t a spectacle for the faint of heart.
A pack of 25 to 40 sharks charged after a distressed humpback whale in the waters off of the Big Island’s Kailua-Kona coast. It was the start of whale season, and trailing behind the sharks was a swarm of local boaters.
At some point during the two-hour pursuit, Porter Watson, a local resident and marine videographer, jumped into the water, drifting within a football field’s length of the whale while capturing footage of preying tiger sharks.
“I happened to drift into where the dead whale was lying with a shark feeding on one pectoral fin,” he told Civil Beat of the November 2006 incident. “The whale was lying on her side on the water.”
Officials of the National Oceanic and Atmospheric Administration disagreed that the whale was dead at the time and slapped Watson with a $1,000 fine for violating federal law by getting within 100 yards of the endangered mammal. State boating officers, who partner with NOAA, had been at the scene waving boats away from the whale and submitted evidence against Watson during a hearing.
Watson is one of about three dozen people fined during the past 10 years in Hawaii for violating marine animal protection laws under the federal Endangered Species Act, according to documents obtained by Civil Beat through a Freedom of Information Act request.
The documents reflect a law enforcement office, staffed with a couple dozen people, struggling to enforce protections for 12 threatened or endangered marine species that inhabit thousands of square miles of ocean. This is on top of the office’s responsibility to enforce a litany of other regulations, including fisheries laws, for the Pacific Island region.
“The islands are huge, and there’s a lot of beach and a lot of water out there,” said William Pickering, the special agent in charge of NOAA’s Honolulu law enforcement office. He said that catching every person who violates the law was unrealistic.
Despite several hundred calls to the agency’s tip line a year, NOAA has only closed one case on Kauai and three cases on Oahu during the past decade. Most of the cases were on Maui and the Big Island. On average, there were about three fines a year statewide, averaging less than $4,000.
The cases reviewed by Civil Beat don’t include a handful of more serious criminal cases eventually turned over to the U.S. Attorney General’s office, such as a 2009 shooting death of a monk seal on Kauai.
Despite NOAA’s limited resources, the agency does pursue violations as much as possible, as Watson found out.
And the case log provides a glimpse into the sometimes curious interactions between humans and animals that are on the brink of extinction.
There’s the case of two Big Island residents who decided to bring a green sea turtle home with them. NOAA officials waived a $3,000 fine as long as the offenders stayed out of trouble for the next two years.
The federal agency was less flexible when it came to Jim Burhorn, who enthusiastically greeted a Hawaiian monk seal resting on Polulu Valley Beach in North Kohala.
Burhorn got within six feet of the mammal, “taking pictures of the seal, waving his arms at the seal, standing between the seal and the water, thereby causing the seal to be flushed into the water,” according to documents.
He was fined $550.
The federal law covers five kinds of sea turtles, the monk seal and six whale species in Hawaii. And NOAA’s responsibilities are likely to grow. The false killer whale may soon be listed as endangered, as well as nine species of coral found in Hawaii.
Officials in the Honolulu office monitor not only the main Hawaiian islands, but the Papahanaumokuakea Marine National Monument which encompasses 140,000 square miles of ocean; the territories of Guam and American Samoa; and the Northern Marina Islands.
UPDATED Fewer than half of the 21-member staff are directly involved in enforcement. There are four street agents, one enforcement officer and two supervising agents, according to Pickering. The law enforcement division has an annual budget of $3.9 million.
To boost enforcement efforts, NOAA officials partner with the state Division of Boating and Ocean Recreation, which helps patrol the waters, and the Coast Guard which can provide helicopter surveillance.
Sometimes officers catch people violating the law during patrols, but the agency also gets a lot of tips from callers. It can be a race to see if NOAA can get to the location in time to catch someone in the act.
“It’s a big area with few assets,” said Pickering. “Sometimes you are really lucky and happen to have someone there at the right time and the right place.”
One of the greater challenges is protecting endangered whales from boats. Operators can have a hard time tracking the whales, and captains of sight-seeing vessels can be too aggressive in trying to get tourists up-close views of marine life, said Pickering.
The biggest fine for endangered species act violations during the past 10 years was assessed against Maui’s Safari Boat Excursions, which specializes in whale-watching tours.
According to the company’s website, they “guarantee close encounters and believe the thrill of seeing these endangered animals is not to be missed.”
But NOAA officials determined that the close encounters were too close.
The boat’s captain, David Larsen, was fined $30,000 for coming within 100 yards of humpback whales five times between 2008 to 2009.
Larsen denied the charges in an interview with Civil Beat, and said he settled the case because he couldn’t afford the attorney’s fees.
“I adamantly deny to this day that we were too close,” he said.
Larsen signed an agreement with NOAA in 2009 admitting to the violations, according to documents.
Encounters with boats can sometimes prove deadly.
“Motors and propellers can do some big time damage, even to an adult whale,” said Pickering. “Propellers can cut right across the backs.”
This was the case with a boat called Expeditons Four, which in 2009 struck and killed a humpback whale between Maui and Lanai and its operator incurred a $3,000 fine. A couple of years later, a boat called the Ikaika-Kai struck and injured two whales. The operator and a crew member were assessed $8,750.
There’s no way to monitor the hundreds of tour boats departing Hawaii’s shores annually, but often boat operators will notify NOAA if they strike a whale, said Pickering.
Even if it’s an accident they can still be fined for injuring or killing the mammal.
An accident can lead to a full investigation, where officials not only interview the boat captain and crew. And even tourists can become witnesses.
“Sometimes the passengers have already disembarked and we have to hunt them down to interview them to find out how much negligence there was, or was there culpability,” said Pickering.
On occasion, NOAA will send undercover agents on tour boats to make sure they are keeping their distance from the whales and not disturbing other endangered sea life.
“They will be there filming like a regular tourist from Nebraska,” said Pickering.
While commercial boat operators can attract the greatest scrutiny, other cases involved people who found themselves in unfortunate circumstances, such as a woman on the Big Island whose dog attacked a green sea turtle. She got off with a warning, though a man on Kauai whose dog attacked a monk seal wasn’t so lucky. He was fined $2,500.
In many of the cases, officials took into account a myriad of circumstances, and fines were often reduced due to factors such as economic hardship, unintentional encounters and evidence that the transgressor had learned a lesson.
In the case of Watson, who got too close to the humpback whale while filming tiger sharks, his original fine was reduced from $2,000 to $1,000. NOAA officials decided that he fell into the lesser category of “expensive hobbyist” rather than “commercial entity.” His video sales weren’t very good.