Some underwater ocean sounds remain a mystery, while other
sounds are well understood by NOAA’s Pacific Marine Environmental
PMEL’s acoustic division continues to find unusual sounds within
its long-term mission of recording and measuring ocean noise and
assessing potential problems created by noisy humans.
I remain intrigued by ocean sounds, and I can’t help but worry
about sensitive marine creatures, such as whales, that must live in
our modern world of noisy ships and machinery.
One mysterious sound nicknamed “Upsweep” was present when PMEL
began recording on the Navy’s SOSUS (Sound Surveillance System)
array in August 1991. The sound, which consists of a series of
upsweeping sounds, is loud enough to be heard throughout the
Pacific Ocean, according to PMEL’s
website. This sound was speeded up 20 times to be more easily
It has been hard to take the news that J-28, a 23-year-old
female killer whale named Polaris, is now missing and presumed dead
— even though I knew this news has been coming since August. It now
appears likely that her 11-month-old son J-54, named Dipper, will
not survive either.
I sadly reported on Polaris’ “super-gaunt” condition in
Water Ways (Aug. 24) after talking to Ken Balcomb of the Center
for Whale Research. Until recently, various whale-watching folks,
including CWR researchers, have reported that Polaris was still
alive. She was generally seen moving slowly and in poor shape, but
at times she seemed to have more energy, raising hopes that she
might recover. But the last sighting of Polaris was Oct. 19 in the
Strait of Juan de Fuca.
During a press conference Friday, Ken announced the death of
Polaris, as he spoke out to raise awareness about the plight of
Puget Sound orcas.
Ken said Dipper’s sister and aunt were attempting to care for
the young orphan, but no other lactating females have moved in to
provide milk, so he likely will die if he is not already dead.
Ken read a personally penned obituary for Polaris, noting
that she was popular with whale watchers, in part because she was
easily identified by a nick in her dorsal fin. She acquired the
distinctive mark when she was nine years old.
At the press conference, Ken talked about the most concerning
problem facing the orcas: a shortage of chinook salmon, their
primary prey. The food shortage is exacerbated when the whales burn
fats stored in their blubber, causing the release of toxic
chemicals from their blubber into their bloodstream. Chemicals can
affect the immune and reproductive systems, as well as other
When I was a young child, we didn’t have to worry about wildlife
getting strangled by six-pack rings, because these plastic binders
for cans had not been invented yet. I was 9 years old in 1961 when
this simple, convenient form of packaging was invented, so I
clearly remember the transition. (See Hi-Cone
At the time, nobody predicted the conservation consternation
that would be created by such a simple piece of plastic. During the
1970s and up to present, pictures of entrapped birds and other sea
creatures became common, suggesting that we at least cut the
plastic to save the animals. The first video provides a story of
Before the invention of six-pack rings, people bought soft
drinks and beer in cardboard packages, which sort of wrapped around
the cans. Pabst Blue Ribbon may have been the first beer sold in
cardboard cartons (second video), although Coca Cola may have
started the phase. The Coke
company claims to be the first to take its bottles out of
wooden crates and begin offering cardboard packaging for consumers
as early as 1923.
Chum salmon are beginning to make their way into Central and
South Puget Sound, which means the orcas are likely to follow.
Given this year’s dismal reports of chinook salmon in the San
Juan Islands, we can hope that a decent number of chum traveling to
streams farther south will keep the killer whales occupied through
the fall. But anything can happen.
On Oct. 2, orcas from J and K pods — two of the three Southern
Resident pods — passed through Admiralty Inlet and proceeded to
Point No Point in North Kitsap, according to reports from Orca
Network. The whales continued south the following day and made
it all the way to Vashon Island, according to observers.
On Tuesday of this week, more reports of orcas came in from
Saratoga Passage, the waterway between Whidbey and Camano islands.
See the video by Alisa Lemire Brooks at the bottom of this page. By
yesterday, some members of J pod were reported back of the west
side of San Juan Island.
The movement of chum salmon into Central Puget Sound began in
earnest this week, as a test fishery off Kingston caught just a few
chum last week, jumping to nearly 1,000 this week. Still, the peak
of the run is a few weeks away.
When a 20-year-old killer whale named Nigel was found dead
floating off Vancouver Island at the end of March, experts
expressed immediate concern about the sharp barbs that remained
embedded in the whale’s dorsal fin. (See
Water Ways, April 14.)
This type of barb is commonly used to attach satellite
transmitters to all sorts of whales and dolphins, allowing the
animals to be tracked over long distances. The satellite tags are
designed to fall off completely — but that did not happen for
Nigel, designated L-95.
As the result of an investigation by the National Oceanic and
Atmospheric Administration, we now know that the barbs helped to
introduce a dangerous fungus into Nigel’s body. The fungus appears
to have spread to his lungs and other organs, ultimately
contributing to his death.
“After a thorough necropsy and investigation, including an
expert review of findings, there was sufficient evidence to
implicate the tag attachment site as a source of fungal infection
to the whale,” states a
report by an expert panel (PDF 209 kb). “This fungal infection
contributed to illness in the whale and played a contributory role
in its death.”
After Nigel was found dead near Nootka Island, NOAA suspended
the satellite-tracking program. As a result of these latest
findings, the agency announced today that it will continue to
prohibit satellite tagging, at least until new standards can be
developed through the International Whaling Commission.
After that, any further tagging would require a new review under
the Endangered Species Act. That’s because the Southern Residents —
the orcas that frequent Puget Sound — are listed as an endangered
The tagging program has provided much information about where
the whales go during winter months when they leave Puget Sound and
travel up and down the coast. That information is expected to help
NOAA Fisheries develop a new “critical habitat” designation for the
Southern Residents. Critical habitat in coastal areas might provide
the whales with protected areas where they could hunt for chinook
salmon, their primary prey.
For now, NOAA may need to use methods other than satellite
tagging to keep track of the whales during winter, said Richard
Merrick, chief scientist for NOAA Fisheries. Experts are reviewing
the existing data to see if they have enough information for
expanding critical habitat outside of Puget Sound.
A total of eight Southern Residents have been tagged using a
similar dart system since tagging began in 2012, according to a
report from Brad Hanson (PDF 972 kb) of NOAA’s Northwest
Fisheries Science Center. Nigel was the last, and all the other
whales are alive and have shed their darts, although one whale did
retain a dart for a while.
The fungus that contributed to Nigel’s death has been found in
the surface waters off Vancouver Island, experts say, and the
attached tag provides an entry point for infection. A couple of
factors may have made things worse for the orca. First, the tag was
dropped during handling and may have become contaminated with
seawater. Although it was sterilized with alcohol, protocols for
tag deployment call for the use of bleach as well.
It was a “human error,” said Merrick, adding that the NOAA
scientists involved are “dismayed” that any of their actions could
have contributed to the orca’s death.
The tag also went into a spot on the dorsal fin lower than
recommended. Although other whales have not had problems with this
location, the concern is the proximity to large blood vessels that
could allow the fungal organism to more easily enter the
final necropsy report (PDF 365 kb) provides evidence that Nigel
may have had some problems with his immune system, and this
particular fungus is known to attack people who are
immune-compromised. I have written about the added risks of disease
among killer whales because of their exposure to toxic chemicals.
You might want to check out my series in the Encyclopedia
of Puget Sound.
Because Nigel’s carcass was severely decomposed when it was
found, the actual cause of death may never be known. But
contributing factors are many.
Reached by phone today, Ken told me that he has given his best
information to government researchers through the years — not only
about the risks of tagging but about other issues as well.
“I get no communication back,” he said. “They just ignore
His greatest concerns today are focused on the lack of wild
salmon to feed the whales, he said. The high death rate and the low
birth rate in recent years largely results from a lack of food,
which compounds other problems that the orcas are facing. While
nine new orca calves since the end of 2014 is encouraging, he said,
the 82 Southern Residents are not in good shape as a
“They do have to eat,” Ken said. “This population requires a
certain quantity of fish, and they are not getting it. Recovery (of
the orcas) is not happening, and it won’t happen until the recovery
of natural fish populations happens.”
The removal of dams on the Snake River would help increase the
wild chinook population, Ken said, but better management of all
life stages of salmon is essential. That means better coordination
between the U.S. and Canada, he added.
Humpback whales have been making the news for their organized
“rescues” — seemingly heroic efforts in which the humpbacks have
intervened in attacks by killer whales against other marine
The humpbacks have not only protected their own calves but they
have gone well out of their way to protect gray whales, minke
whales, Dall’s porpoises, Steller sea lions, California sea lions,
Weddell seals, crabeater seals, harbor seals, northern elephant
seals and even ocean sunfish, according to researchers.
The latest incident, in which humpbacks reportedly intervened in
a killer whale attack on a Steller sea lion, is said to be the
first reported incident in the Salish Sea. The incident took place
last week off Sooke, BC, about 20 miles west of Victoria.
“What we witnessed was pure aggression,” Capt. Russ Nicks of BC
Whale Watch Tours of Victoria said in a
news release from Pacific Whale Watch Association. “We had four
humpbacks trumpeting, rolling on their sides, flukes up in the air
“The killer whales split many times into two groups, with one
that appeared to try to draw the humpbacks away from the sea lion.
The other group would go in for the attack while the humpbacks were
safely away – but then they’d get in the middle of it again,
fighting the orcas off. It was amazing to watch.”
These killer whales were of the transient variety, a subspecies
of killer whales that eats marine mammals, as opposed to the
resident orcas that each fish.
The same attack and rescue was viewed by naturalist Alethea
Leddy of Port Angeles Whale Watch Company, as reported in the news
“We got there in time to see some crazy surface activity, with
humpback whales splashing in the distance along with orcas. Then
two humpbacks surfaced next to us trumpeting, and the next thing we
know there were four humpbacks, possibly six, all defending the sea
“The water boiled all around as the orcas tried to separate the
sea lion from the humpbacks. It was a wild scene, with the
humpbacks even circling the sea lion trying to keep him safe while
he frantically struggled to get his breath.
“The anxiety of the humpbacks was palpable, and they took turns
diving and slashing at the orcas. This life-and-death drama went on
and on until the four transient orcas, known as the T100 family,
moved off in the distance. As they did, we saw the sea lion appear
next to the humpbacks being guarded and escorted in the opposite
“This was an unbelievable encounter. Hats off to our courageous
humpbacks and best wishes to our little Steller sea lion, survivor
for another day!”
In July, 14 marine mammal experts reported on 115 apparent
rescue efforts by humpback whales during what appeared to be killer
whale attacks on other species of marine mammals. Their report
appeared in the journal Marine
Reasons for these rescue efforts are open to much speculation,
but the researchers noted that evidence is mounting in favor of a
belief that killer whales that eat marine mammals, called MEKW,
attack young humpback whales more often than commonly reported.
“Clearly, MEKW predation, even if rarely observed and targeting
mainly calves and subadults, represents a threat to humpbacks that
is persistent, widespread, and perhaps increasing,” the report
states. “As such, humpbacks could be expected to show some specific
anti-predator behaviors, and indeed some have been suggested. Ford
and Reeves (2008) summarized the defensive capabilities of baleen
whales faced with killer whale attack, and they identified two
general categories of response.
“Balaenopterid rorquals (including fin whales and minke whales)
use their high speed and hydrodynamic body shape to outrun killer
whales and were classified as flight species. The
generally more rotund and slower-swimming species — right whales,
bowhead whales, gray whales and humpback whales — apparently rely
on their bulk and powerful, oversized appendages (tail and
flippers) to ward off attackers. This group was categorized as
Of course, it is one thing for the humpbacks and other baleen
whales to take a defensive posture. It is quite another thing for
them to go after killer whales when another species of marine
mammal is under attack.
In the report, humpbacks initiated encounters with MEKWs 58
percent of the time, while the killer whales initiated contact 42
percent of the time — at least for those cases when the killer
whale ecotype could be identified as marine mammals eaters. On a
few occasions when known fish-eating killer whales were involved,
the encounter was relatively benign, the researchers said.
The video, shot by BBC filmmakers, show a pair of humpback
whales attempting to prevent a group of orcas from killing a gray
whale calf. In this case, the effort was unsuccessful.
When humpbacks went to the rescue of other marine mammals, it
appears that the rescuers were generally a mixture of males and
females, according to the report. Humpback postures, whether
attacking or defending, involved slapping their flukes on the
surface, slashing from side to side, bellowing, persuing and
flipper slapping. The length of battles reported ranged from 15
minutes to seven hours. In the end, the prey that was at the center
of the battles was killed 83 percent of the time — at least for
those cases when the outcome was known.
“The humpback whale is, to our knowledge, the only cetacean that
deliberately approaches attacking MEKWs and can drive them off,
although southern right whales may also group together to fend off
MEKWs attacking other right whales,” the researchers stated, adding
that humpbacks’ powerful flippers covered in sharp barnacles can
shred the flesh of their opponents.
When in hunting mode, transient killer whales are generally
silent, not making much noise. Once an attack begins, they become
more vocal, perhaps to coordinate the attack. It appears that
humpbacks respond to killer whale vocalizations from distances well
out of sight of the attack.
The reasons the humpbacks would get in a fight with killer
whales to save another species are listed in three categories:
Kin selection: Protecting an offspring or
closely related animal.
Reciprocity: Protecting unrelated animals,
generally as part of a social organization.
Altruism: Benefitting another animal at some
cost to the one taking action.
It is possible, the researchers conclude, that humpbacks could
be improving their individual and group fitness to fend off attacks
against their own by protecting other species. One idea is that the
killer whales may think twice about attacking a humpback of any
“We suggest,” they write, “that humpbacks providing benefits to
other potential prey species, even if unintentional, could be a
focus of future research into possible genetic or cultural drivers
of interspecific altruism.”
An organization called Sea Shepherd Global
announced yesterday that it will take up the cause of battling
Japanese whaling ships in the Southern Ocean of Antarctica later
The announcement comes just days after court approval of a legal
settlement, a deal that will forever block Sea Shepherd
Conservation Society from confronting Japanese whalers on the high
Sea Shepherd Global, based in The Netherlands, apparently is out
of reach of the U.S. courts, which sanctioned the original Sea
Shepherd group for its sometimes violent actions against the
whalers. Sea Shepherd Conservation Society, the U.S. group, is led
by its founder, Capt. Paul Watson, who had stepped down for a
Sea Shepherd Global has mobilized its forces for what it calls
the “11th direct-action whale defense campaign.” The group has
built a new ship it claims can keep up with and surpass the
Japanese harpoon ships. Anyone who has watched “Whales
Wars,” the reality television series, probably knows that Sea
Shepherd’s ships have suffered from a lack of speed and were often
left in wake of the whaling vessels.
Sea Shepherd, with its fierce opposition to killing marine
mammals, has always claimed to be on the right side of
international law when it comes to whaling. Now its members are
inspired by a 2014 ruling in the International Court of Justice,
which found that whaling — at least as practiced by Japanese
whalers — is not a scientific endeavor. The Japanese government has
lost its only justification for whaling until it develops new
scientific protocols acceptable to the International Whaling
Commission. Review a discussion of these issues in Water Ways,
March 31, 2014, with an update on
Dec. 14, 2015.
Sea Shepherd Global also justifies its plans with a
contempt-of-court citation filed by the Australian Federal Court
against the Japanese whalers for killing protected whales within
the Australia Whale Sanctuary. Japan, however, does not recognize
the sanctuary nor the Australian jurisdiction.
“If we cannot stop whaling in an established whale sanctuary, in
breach of both Australian Federal and international laws, then what
hope do we have for the protection of the world’s oceans?” asked
Jeff Hansen, managing director of Sea Shepherd Australia in a
news release. “We must make a stand and defend whales with
everything we’ve got.”
After the International Court of Justice ruling, the Japanese
took a year off from whaling before submitting a new whaling plan,
which was questioned by a scientific committee at the International
Whaling Commission. Without waiting for approval, the whalers
returned to the Southern Ocean last December. A limited Sea
Shepherd fleet followed, but the whalers killed 333 minke whales —
a quota approved by the Japanese government but nobody else.
Meanwhile, Sea Shepherd Conservation Society (SSCS) has been
engaged in a legal battle with the Japanese-sponsored Institute of
Cetacean Research in the U.S. courts. Initially, a U.S. district
judge dismissed the Japanese claims. On appeal, however, the Ninth
Circuit Court of Appeals called Sea Shepherd a “pirate”
organization, ordered the group to stay away from the Japanese
ships and eventually found Sea Shepherd in contempt of court for a
peripheral involvement in the anti-whaling effort. Initial appeals
Water Ways, Feb. 26, 2013.
SSCS agreed to pay $2.55 million to settle a damage claim from
Japan in light of the contempt ruling. The group had been hoping
that Japan’s lawsuit in the U.S. courts would open the door for a
countersuit, in which the illegality of Japanese whaling would
spelled out and confirmed.
All legal claims and counterclaims were dropped in the
settlement agreement (PDF 410 kb) between SSCS and the
Institute of Cetacean Research. The agreement, approved last week
by U.S. District Judge James Robart, says SSCS cannot approach
Japanese whaling ships closer than 500 yards. SSCS cannot provide
financial support to anyone else who would approach the Japanese
ships in an aggressive way, including “any entity that is part of
the worldwide ‘Sea Shepherd’ movement and/or uses or has used some
version of the ‘Sea Shepherd’ name.”
The agreement mentions a “settlement consideration to be paid to
Sea Shepherd Conservation Society,” although the amount has not
The Institute of Cetacean Research immediately issued a news release
about the settlement. Paul Watson offered a three-pronged post on
page. One part was his own message, saying Sea Shepherd would
remain opposed to whaling but would comply with the settlement
Another part was a statement from Capt. Alex Cornelissen,
director of Sea Shepherd Global:
“The ruling in the US courts affects ONLY the US entity. All the
other Sea Shepherd entities in the Global movement are not bound by
the US legal system, the mere assumption that it does clearly
demonstrates a lack of understanding of Sea Shepherd Global’s
structure. Sea Shepherd Global and all other entities around the
world, other than the USA, will continue to oppose the illegal
Japanese whaling in the Antarctic.”
“Jeff Hansen, managing director of Sea Shepherd Australia, told
the BBC the U.S. ruling would ‘absolutely not’ affect its own
operations. He said if the ICC (sic, ICR?) were to pursue Sea
Shepherd in Australia ‘they would be entering into a court system
they’re in contempt of, and we would welcome that.’”
statement yesterday, Sea Shepherd Global said it was
disappointed that the international community has not taken more
steps to protect whales in the Southern Ocean. Still, Sea Shepherd
Global will be there with a new fast ship, the Ocean Warrior, built
with the financial support of the Dutch Postcode Lottery, the
British People’s Postcode Lottery and the Svenska
“For the first time, we will have the speed to catch and outrun
the Japanese harpoon ships, knowing speed can be the deciding
factor when saving the lives of whales in the Southern Ocean,” said
The Ocean Warrior will undergo final preparations in Australia
at the end of the year, about the time that Japanese whaling ships
arrive for their anticipated harvest of marine mammals. And so the
whale wars will go on but without any involvement from Paul Watson
and his U.S. contingent.
By the way, Paul, who had been living in exile in France, has
returned to the U.S., according to a
news release from Sea Shepherd that recounts Paul’s history of
fleeing from prosecutors in Japan and Costa Rica. Paul, 65, and his
wife, Yanina Rusinovich, a Russian-born opera singer, are now
living in Woodstock, Vermont, and expecting a baby in October.
I have some bleak news to share about our Southern Resident
killer whales, which normally frequent Puget Sound at this time of
J-14, a 42-year-old female named Samish, has gone missing and is
presumed dead, while J-28, a 23-year-old orca mom named Polaris,
may be living out her final days.
“Things are shaping up to be pretty bad,” said Ken Balcomb of
the Center for Whale
Research, who keeps tabs on the orca population. “J-28 is
looking super-gaunt, and I would say she is within days of her
The saddest part of my conversation with Ken this morning was to
hear him say that Polaris’ 7-month-old calf would become an orphan
and probably will not survive without his mother. That’s the
typical outcome for an orphan of that age, Ken said, although there
is a chance that the young male will be adopted by his
The calf, J-54, is still nursing, but he is close to weaning,
Ken noted. He is the newest calf born into the three Southern
Resident pods and is part of the “baby boom” of nine orcas born
between December 2014 and December 2015. So far, only one of those
calves, J-55, has died.
After my conversation with Ken, the Center for Whale Research
posted a news release about the death of Samish. Orca observers on
the water have known that she was missing for some time now.
As of today, J pod was on its way out through the Strait of Juan
de Fuca, no doubt searching for food. The chinook salmon run has
been very low this summer.
“Historically, at this time of year, we would see nice little
bunches (of orcas) swimming back and forth in front of the house,”
said Ken, who lives on the west side of San Juan Island. But this
year, the whales have broken up into small family groups and are
traveling around in seemingly random patterns, presumably in search
of whatever salmon they can find.
“Even the fishermen aren’t getting much this year,” Ken
To gauge a killer whale’s condition, researchers consider the
overall shape of its body. Without adequate fish — primarily
chinook salmon — an orca grows thinner as the body fat declines. As
conditions grow worse, a depression develops behind the blow hole.
This sunken condition — which Polaris has developed — is called
“peanut head.” So far, none of the other animals have been observed
in such a dire condition.
I’ve often been told by medical experts that when a killer whale
loses weight it can be a sign of a major problem, such as a disease
that makes them incapable of hunting to their normal ability. But a
shortage of food can exacerbate the condition.
“We have been telling the government for years that salmon
recovery is essential for whale recovery,” Ken said.
He blames the salmon decline on longtime mismanagement of wild
salmon stocks — including damage to habitat, over-fishing and
excess hatchery stocks in both Canada and the U.S. One of the
quickest ways to increase the chinook population for these whales
is to take out the Snake River dams, he said.
Rebuilding salmon runs on the Elwha River will help, Ken said,
but the number of fish is small compared to the potential of the
Snake River, which flows into the Columbia and produces salmon that
can be caught in the ocean.
“I’m trying to get the marine mammal people to talk to the
salmon people,” Ken said. “Fish have been a political problem for a
long time, and we are not solving the salmon issue.”
Money spent on law enforcement to make sure whale watchers don’t
get too close to the orcas would be better spent on education —
specifically on educating lawmakers about the needs of salmon and
killer whales, he quipped.
As of July 1 — the date of the annual orca census — the
population of the three Southern Resident pods stood at 83. That’s
the number that will be reported to the federal government. Since
then, Samish has gone missing, so the ongoing count falls to 82,
pending the status of Polaris and her son.
Samish was considered part of the J-2 (“Granny”) family group.
Her living offspring are Hy’shqa (J-37), Suttles (J-40) and
Se-Yi’-Chn (J-45). Samish was the grandmother to Hy-Shqa’s
4-year-old son T’ilem I’nges.
Polaris is the first offspring of Princess Angeline (J-17), who
is still living. Her first offspring, a female named Star (J-46),
is now 7 years old. J-54 is her second offspring.
After more than a decade of losing court battles, the U.S. Navy
still refuses to fully embrace the idea that whales and other sea
creatures should be protected during Navy training exercises, says
Joel Reynolds, senior attorney for the Natural Resources Defense
But the blame cannot be placed entirely on the Navy, Joel says
in a blog entry he wrote for the
“In fact, much of the blame lies with the government regulatory
agency whose mandate it is to protect our oceans,” he writes. “It
lies with the failure of the National Marine Fisheries Service to
do its job.”
Joel has been at the forefront of the legal effort to get the
Navy to change its ways — and the effort has been successful to a
large degree. At least we now have a much greater understanding
about the effects of sonar on whales and other marine animals.
Legal challenges forced the Navy to acknowledge that it didn’t
really know what damage its activities were doing to the oceans.
The result was to develop studies, which turned out to provide some
Joel’s latest frustration comes this week in the wake of new
authorizations by NMFS to sanction Navy activities found to be
unacceptable by the U.S. Ninth Circuit Court of Appeals.
Joel’s life story and that of Ken Balcomb, who I call the dean
of killer whales in Puget Sound, are described in intriguing detail
in the book “War of the Whales” by Joshua Horwitz. The book
documents their personal and legal battles to hold the Navy
accountable for its impacts on whales.
The Navy would never have found itself on the losing side of
these sonar lawsuits if the National Marine Fisheries Service
(sometimes called NOAA Fisheries) had been doing its
congressionally mandated job of protecting marine mammals, Joel
says. For the agency, that would mean approving “take” permits only
when the Navy has done its best to reduce the risk of injury during
training exercises — which everyone agrees are important.
“Rather than exercising the oversight required by law, the
Service has chosen in effect to join the Navy’s team, acquiescing
in the omission of common-sense safeguards recommended even by its
own scientific experts,” Joel writes in his latest blog post.
After reading his post, I asked Joel by phone yesterday what it
would take to get the National Marine Fisheries Service on the
“I don’t have an easy answer for that,” Joel told me, noting
that he recently held a related discussion with Sylvia
Earle, renowned oceanographer and formerly chief scientist for
the National Oceanic and Atmospheric Administration.
“She is very familiar with the problems of NMFS,” Joel said.
“She said NMFS is an agency responsible for killing fish.”
That said, the agency has a lot of dedicated researchers and
experts who know what needs to be done, especially at the regional
level. But they are hamstrung by federal politics and by budget
“The Pentagon is essentially able to dictate every part of
government,” Joel said. “The financial implications are very real,
because the military is so powerful. If NMFS gives them trouble,
they call their contacts on Capitol Hill, and pressure is brought
The Navy has spent decades operating at its own discretion
throughout the world’s oceans. The notion that another federal
agency or some upstart environmental groups should limit its
activities just doesn’t sit well among established Navy
The problem is so entrenched in government that any resolution
“is going to take some focused attention under the next
administration,” according to Joel.
If Hillary Clinton is elected, Joel said he might look to John
Podesta to untangle the mess. Podesta served as chief of staff
under President Bill Clinton and was instrumental in opening up
long-held but arguably unnecessary government secrets. He currently
serves as chairman of Hillary Clinton’s campaign.
“John Podesta understands these things,” Joel told me. “If we
can’t get him (to do something), we can’t get anyone. I think it
would take a reorganization. The way NMFS is set up, they are in
the business of authorizing ‘take’ instead of issuing permits based
on the protections that are needed.”
Joel wasn’t clear how a regulatory agency might be organized to
hold its own against the Navy, but the idea should be on the table,
he said. Until then, the NRDC and other environmental groups will
continue to battle in the courts, where judges are able to use some
Meanwhile, NOAA has developed an “Ocean Noise Strategy
Roadmap,” which promises to find ways to control harmful
man-made noise. The roadmap is based, in part, on scientific
studies about the hearing capabilities of marine mammals. Review my
Water Ways post on the “draft guidance”
Water Ways, March 26, 2016.
These steps have been encouraging — at least until this week
when NMFS issued
letters of authorization for the Navy to keep operating under
its 2012 plan, which the Ninth Circuit Court of Appeals had
declared a failure to meet requirements for the “least practicable
adverse impact.” (Read
The agency chose to move ahead because the court had not yet
issued its mandate — a formal direction to a lower court — by the
time the letters of authorization were issued.
“The Navy has a robust and practicable monitoring and mitigation
program that we believe is very effective in reducing the
likelihood of injury,” according to an
explanation from NMFS.
Check out Ramona Young-Grindle’s story about this latest finding
Courthouse News, which includes these further comments from
“We are astonished to see an LOA issued in the wake of the court
of appeals’ decision that the LFA (low frequency active sonar)
permit is illegal. NMFS is entrusted under federal law to enforce
the Marine Mammal Protection Act for the benefit of marine mammals
— not for the convenience of the Navy. This capitulation to the
Navy’s request to continue ‘business as usual’ under a permit
determined by a federal court to be illegal is outrageous.”
After 43 years and some legal prodding, the United States is
preparing to use its economic and political power to protect
whales, dolphins and other marine mammals around the world.
On Monday, the National Oceanic and Atmospheric Administration
is scheduled to
publish regulations that will set up a system to ban imports of
seafood from any country that fails to control the killing of
marine mammals in its fishing industry.
To avoid a ban, foreign controls must be as effective as
standards adopted by the United States to reduce the incidental
death and injury to marine mammals in the U.S. fishing industry.
Harvesting nations that wish to continue selling fish and fish
products to U.S. markets will have five years to implement their
marine mammal protection programs, if they have not already done
When it was first approved by Congress in 1972, the Marine
Mammal Protection Act included provisions that would ban imports of
fish caught in commercial fisheries where the “bycatch” of marine
mammals exceeded U.S. standards. But the law was largely ignored
until environmental groups filed a lawsuit against NOAA two years
ago. The lawsuit was eventually settled, with NOAA agreeing to
approve new rules by August of this year.
NOAA estimates that 650,000 marine mammals are killed each year
in fishing operations. Meanwhile, U.S. consumers obtain 94 percent
of their seafood from a growing import market valued at $33 billion
“The new regulations will force countries to meet U.S.
conservation standards if they want access to the U.S. market,
saving thousands of whales and dolphins from dying on hooks and in
fishing nets around the world,” said Sarah Uhlemann, international
program director for the Center for Biological Diversity. “The U.S.
government has finally recognized that all seafood consumed in the
United States must be ‘dolphin-safe.’”
Comments were made in a
joint news release from the Center for Biological Diversity,
the Natural Resources Defense Council and the Turtle Island
Restoration Network — the three groups that brought the
The new regulatory program on imports calls on NOAA Fisheries to
issue a “comparability finding” after harvesting nations
demonstrate that they have a regulatory program that meets U.S.
standards for protecting marine mammals. Each program must prohibit
the incidental killing or serious injury to marine mammals in all
fisheries, estimate numbers of marine mammals on their fishing
grounds and find ways to reduce harm if established limits are
Over the next year, the regulations call for NOAA Fisheries to
request information on marine mammal bycatch from countries that
export to the U.S. On a list of foreign fisheries, each fishery
will be classified either as “export” or “exempt.” Exempt fisheries
are determined to have a remote chance of killing marine mammals,
so they are not required to have a regulatory protection program.
Those fisheries likely to impact marine mammals and those lacking
information about impacts are placed in the export category. All
fisheries must prohibit intentional killing of marine mammals to
At the end of the five-year period, NOAA Fisheries will publish
a list of fisheries that will not receive a comparability finding
along with a list of fish banned from import. Those countries will
receive information about why they were denied certification and
are eligible to reapply at any time. Other details are outlined in
fact sheet from NOAA Fisheries.
The U.S. Marine Mammal Commission, a group appointed by the
president to advise the government on the Marine Mammal Protection
Act, welcomed the long-overdue regulations to protect marine
mammals throughout the world, but said the five-year implementation
period is too long. See
comments, Nov. 9, 2015. (PDF 1.4 mb):
“Inasmuch as this is an ongoing, long-standing statutory
requirement, the Commission does not see a legal basis for
deferring implementation. To the extent that any delay can be
countenanced, it should be kept to the absolute minimum necessary
to secure the required information from exporting countries.
“The Commission is concerned that the proposed delay would
result in at least another six years during which seafood could
continue to be imported into and sold in the United States, despite
unacceptably high levels of marine mammal bycatch, unbeknownst to
U.S. consumers, and during which U.S. fleets would face unfair
competition from foreign fleets with little or no accountability to
follow comparable marine mammal conservation measures.”
In 1988, while the U.S. was developing new fishing standards to
protect marine mammals, U.S. fishermen were required to report the
type of gear they were using and any incidental catch of marine
mammals, the Marine Mammal Commission noted. Fishermen also were
required to allow observers on their boats while the agency
developed stock assessments and new rules to protect various
species of marine mammals. Those kinds of interim measures should
be required of foreign fleets as well, the commission said.
Among its many comments when the rule was first proposed last
year, the commission criticized the plan for placing too much
burden on NOAA Fisheries to gather the information, rather than
requiring the importing countries to document their protections for
“The Commission further recommends that the final rule clearly
specify that nations be issued a CF only if they meet the U.S.
standards, rather than be issued a CF unless it is shown that they
do not meet the applicable requirements.”
As far as I can tell, the final rule failed to incorporate most
of the commission’s suggestions. Still, using the economic and
political power of the U.S. to protect marine mammals around the
world is a considerable leap.
While the new regulations are expected to level the playing
field for U.S. fishermen who must comply with marine mammal
protections, we have yet to see the full response from other
countries. At some point, a ban on U.S. imports is likely to
trigger a challenge based on existing international trade
agreements. I haven’t seen much written about the legal
implications of the new marine-mammal-protection rules, but we have
seen what can happen. Review the article by Mark J. Robertson about
“dolphin-safe” tuna rules in a report for the
International Centre for Trade and Sustainable Development.