Licensed to kill

From ANIMAL PEOPLE, September 1997:

WASHINGTON D.C.––You probably
think the Endangered Species Act, Marine
Mammal Protection Act, and Migratory Bird
Treaty Act protect wildlife.
What they actually do is require special
permission to kill or harass wildlife––and
spot-checking recent requests for permits and
exemptions, ANIMAL PEOPLE and Friends
of Animals’ special investigator Carroll Cox
quickly confirmed that the permitting and
exempting procedures are easily and often
“Permitting and exemptions are the
Achilles heel of wildlife law enforcement,”
says Cox, a former special investigator for the
U.S. Fish and Wildlife Service and game warden
for the California Department of Fish and
Wildlife. “With the right permit or an exemption,
you can do anything.”

Twenty years of attempting to
enforce wildlife protection laws convinced Cox
that “legal poaching through permitting and
exempting,” as he calls it, is an even more
serious threat to wildlife than the illegal poaching
rings he brought to justice, among them
some of the biggest ever detected.
For instance, shrimpers off Alabama
have since August 6 ignored the federal law
requiring them to use turtle exclusion devices
(TEDs) on their nets––with the blessings of the
National Marine Fisheries Service. They may
tow their nets TED-free for up to 55 minutes
between retrievals, the estimated maximum
time a turtle could be in a net and not drown.
With a TED, the normal tow-time
limit is 90 minutes. Neither limit, however, is
easily enforced, since an enforcement officer
would have to know exactly when a net went
into the water, or observe it continuously in
order to catch a violation.
TED-less shrimping will continue off
Alabama until at least September 5, and then
may be extended for another 30 days. At the
ANIMAL PEOPLE deadline, NMFS officials
were uncertain whether Louisiana––with more
vigilant activists and media––would apply for a
similar exemption.
The Alabama TED waiver came
about, NMFS staff told ANIMAL PEOPLE
and confirmed to Cox, because of a letter that
Alabama Department of Conservation &
Natural Resources director R. Vernon Minton
sent on July 28 to Andrew Kammerer,
Southeast regional administrator for the
National Oceanic and Atmospheric
Administration, of which NMFS is part.
“As you are aware,” Minton wrote,
“Hurricane Danny hit the Alabama coast on
July 19. The aftermath left a tremendous
amount of debris in Alabama’s bays, causing
extraordinary difficulty with the performance of

TEDs. Therefore,” Minton continued, “we are requesting an
emergency 30-day variance to the TED rules within the waters
of Alabama which are open to shrimping.”
In case anyone wondered what the connection was
between the TED rules and the hurricane of 11 days earlier,
Minton spelled it out: “Shrimp fishermen in Alabama are experiencing
severe economic hardship due to this situation.”
Suspending the TED rules, Minton argued, “would
be the best solution to the problem because the TEDs are being
rendered inoperable by the debris. The 55-minute tow would
be more effective for the turtle protection desired than attempting
to use TEDs under these circumstances.”
Kammerer has a 10-year record of trying to enforce
TED rules, against intense shrimper opposition. NOAH, however,
for which he works, is a branch of the Department of
Commerce. The Department of Commerce not only has an economic
mandate which may conflict with conservation, but also
has cabinet-level representation in the White House.
Considering a run for the presidency next year, Vice
President Albert Gore is eager to get Endangered Species Act
reauthorization out of the way this fall, before it becomes a
campaign issue capable of splitting the Democratic support
base. Interior Secretary Bruce Babbitt, also a rumored presidential
contender, may have similar concerns.
Gore, as former U.S. Senator from the neighboring
state of Tennessee, no doubt remembers well that Alabama
Senator Howell Heflin, acting on behalf of Gulf shrimpers,
blocked ESA reauthorization bills in both 1986 and 1988. In
December 1996, apparently deferring to Heflin’s clout,
Alabama waters were excluded from the “special sea turtle conservation
zones” off Louisiana, Texas, Georgia, and South
Carolina where so-called “soft TEDs” were phased out in favor
of more effective “hard TEDs.”
Heflin was first elected to the Senate in 1978, when
former Alabama governor George Wallace declined to oppose
him. He now ranks third in seniority among Democratic
Senators. Democratic presidential candidates need his support.
Thus when Alabama complained about rain, NOAA
promised relief.
Where’s the data?
ANIMAL PEOPLE filed a Freedom of Information
Act request for any data Minton might have sent NMFS to substantiate
that TEDs were not effective in protecting sea turtles
after Hurricane Danny. Cox filed a similar request. Both also
made such requests directly to Minton.
The only supporting documentation received that
might have existed before the TED waiver took effect was a
second letter from Minton, dated August 6––the very day the
TED waiver began––which asserted without citing a source
that, “the usual protection afforded to turtles by this gear is
negated by debris jamming the TED.”
As a whole, the letter assured NMFS that Alabama
would help enforce the tow-time limit, although Alabama state
agencies do not normally do so, and completed the record of
agreements that NMFS needed to pass the buck.
Challenged again to produce hard data, Minton on
August 15 claimed “interviews with fishermen by biological
and enforcement personnel” had established “clogging of the
escape panels,” and added that “The variance on the use of
TEDs was requested only for the inside waters of the state,”
e.g. the Mississippi Gulf and Mobile Bay. “This area,” he continued,
“received the majority of the debris and few records of
sea turtle sitings exist for Alabama’s inside waters. Dr. Robert
L. Shipp, chairman of the South Alabama Marine Sciences
Department and sea turtle stranding coordinator for Alabama,
stated that ‘There have been no sea turtle strandings or sightings
from Alabama’s inside waters in the last five years.’”
Shipp told Cox he was misquoted: there had been
sightings but not strandings. He didn’t come to the telephone
NMFS southeast region protected species officer
David Bernhart had record, he said, of only 13 strandings in
Alabama waters in 1994 and 1995, of which only one Kemp’s
ridley turtle––the most endangered variety––was found inshore.
But NMFS sea turtle stranding reports for 1997 through August
15 showed 16 strandings in zones 10 and 11, which respectively
cover a small part of Florida, east to mid-Mobile Bay, and
from mid-Mobile Bay west to a corner of Mississippi. Among
the 16 stranded turtles were 11 Kemp’s ridleys. Thus 5% of the
226 Kemp’s ridley strandings thus far into the year came along
barely 2% of either coastline or shoreline habitat.
U.S. Fish and Wildlife Service sea turtle biologist
Sandra MacPherson explained that there are no known ratios
between the number of stranded sea turtles discovered and the
number living nearby. It could be anywhere: 100/1, 1,000/1,
higher or lower. But certainly sea turtles do inhabit Alabama
inland waters, plentifully enough to be of concern.
NMFS was allowed to opt out of turtle protection,
until Alabama shrimpers’ incomes are up, by paragraph 50
CFR 227.72(e)(3)(ii), on page 162 of the current edition of the
Wildlife & Fisheries Code of Federal Regulations, which provides
that the assistant administrator of the Department of
Commerce who directs NMFS “may allow compliance with
tow-time restrictions, as an alternative to the TED requirement,
if he/she determines that the presence of algae, seaweed,
debris or other special environmental conditions in a particular
area makes trawling with TED-equipped nets impracticable.”
Thus, 18 days after Hurricane Danny, NMFS waived
the TED requirement off Alabama as a purported emergency
response, offering no opportunity for either public comment or
intervention. Notice of the waiver didn’t appear in The Federal
Register until August 12. As of August 15, none of the sea
turtle protection groups contacted by either ANIMAL PEOPLE
or Cox even knew the TED waiver had been proposed.
According to the belated Federal Register i t e m ,
“Notice and comment are contrary to the public interest in this
instance because providing notice and comment would prevent
the agency from providing relief within the necessary time
frame. Furthermore, the public had notice and an opportunity
to comment” on the regulation allowing the TED waiver,
“when that regulation was finalized,” in 1992, as a boon to
Gulf shrimpers after Hurricane Andrew.
“We wouldn’t do this if it was harmful to turtles,”
NMFS turtle biologist Therese Conant told ANIMAL PEOPLE,
insisting that the waiver was motivated by the possibility
of debris jamming TEDS closed.
ANIMAL PEOPLE read to Conant a paragraph from
the July 29 edition of the New Orleans Times-Picayune, headlined
“Feds considering TEDs relief,” apparently based on
remarks from Kemmerer. The sole cited reason for the proposed
“relief” then was that, “The fishers say debris churned
up by the storm is becoming tangled in their trawls, preventing
the TEDs from closing and allowing shrimp to escape.”
Presumably, turtles could also escape, just as open
TEDs are supposed to allow.
Conant then acknowledged that “The main focus of
this action is to prevent all the shrimp loss. The number one
emphasis,” she reiterated under questioning, “is on preventing
shrimp loss at this time.”
Yet sea turtles in the Gulf of Mexico may have been
hurt more by Hurricane Danny and other summer storms than
shrimpers’ economic security. Back in May, turtle experts predicted
a record nesting season along the Florida coast, where
about 40% of all loggerhead sea turtles hatch. Along the
Florida west coast, however, unusually heavy beach erosion
associated with storms and dredging had by mid-August
destroyed as many as half the nests at some major refuges.
Florida turtle nestings had increased from 49,422 in
1989 to more than 76,000 in 1996. Each nest contains about
100 eggs, of which 75% hatch––but just one hatchling in 1,000
survives to maturity.
Comments on possible extension of the TED waiver,
both for another 30 days and to Louisiana waters, must be sent
by September 5 to the Chief, Endangered Species Division,
Office of Protected Resources, NMFS, 1315 W. Highway,
Silver Spring, MD 20910; fax 301-713-0376.
Unlike sea turtles, cormorants have no constituency.
The double-crested cormorant native to the U.S. and Canada
received Migratory Bird Treaty Act protection through almost
incidental inclusion among the species lists covered by international
treaties ratified in 1972 and 1976. European cormorants
were likewise protected as an after effect of broader legislation.
Hunters, fishers, and even some birdwatchers have
tried to undo cormorant protection ever since. A European
Union scientific committee formally recommended scrapping
cormorant protection in February, since the continental population
has increased from 5,000 pairs in 1979 to more than
100,000 pairs now.
A similar comeback began in the U.S. at about the
same time, coinciding with international restrictions on the use
of DDT. As with many other avian predators, food chain
build-up of DDT long inhibited cormorant reproduction. The
first cormorants known to nest at Missisquoi National Wildlife
Refuge in northern Vermont arrived in 1981, four years after
DDT production ceased in the U.S., growing to 3,079 resident
pairs this past summer. Twenty-two cormorants recolonized
Little Galloo Island on Lake Ontario three years later, growing
to 5,553 pairs in just eight years.
At each site, and many others, cormorants are
accused of killing nesting trees, causing pollution, and taking
over habitat, as at Missisquoi, where ornithologists David
Capen and Margaret Fowle of the University of Vermont blame
them for causing the great blue heron population to drop from
500 nesting pairs in 1988 to just 100 this year.
Most of all, cormorants are detested for catching fish.
Fish are in decline. Cormorants are increasing. Cormorants
follow fish-stocking trucks and dive on the fry––since the obvious
response, releasing the fry only at night, is seldom if ever
practiced. Therefore, cormorant-haters reason, cormorants are
to blame for poor catches.
Lynching is the usual result. At Little Galloo,
unsolved cormorant massacres began in 1992. In Britain, former
Angling Times editor Keith Higginbottom was recently
charged under the 1981 Wildlife and Countryside Act for
allegedly inciting readers to crime with a page one headline
stating, “These birds must be killed,” above a photo of a
masked man carrying a gun and four dead cormorants.
About the only fishers who seem to like cormorants
are some Asians who catch fish with birds on tethers, in a practice
akin to falconing.
“I can identify with cormorants,” Cox laughs,
“because they’re black, I’m black, and the Fish and Wildlife
Service doesn’t want me around either.”
As with racisim, cormorant hatred has nothing to do
with factual evidence. James Johnson of the National

Biological Survey reported in September 1994
that analysis of more than 1,200 food pellets
regurgitated by the Little Galloo cormorants
revealed that just .0.5% of their diet were the
lake trout and salmon, coveted by fishers.
Overall, Johnson found, “The cormorants
eat approximately 5% as much fish by
weight as are consumed by predatory fish,”
like trout and salmon. Mostly, Johnson
learned, Lake Ontario cormorants eat
alewives, an introduced species often blamed
for the decline of native yellow perch.
Similar findings emerged last year
from a study of British cormorants by
researchers at Liverpool John Moores
University and the University of Hull.
But facts also seem to have had little
to do with Proposed Depredation Order for
the Double-Crested Cormorant , issued on
June 9 by the Fish and Wildlife Service, with
an August 22 deadline for comment.
The proposed order would ease the
Fish and Wildlife paperwork and enforcement
workload by creating an exemption to the
MBTA that would allow fish farmers to “take
[kill] double-crested cormorants when found
committing or about to commit depredation,”
without having to get a federal permit, effective
until April 30, 2005.
A cormorant, notes Cox, is “about
to commit depredation” any time it sees a fish.
The depredation order proposal cites
a variety of often conflicting studies as to the
actual extent of cormorant feeding at fish
farms. Three studies done between 1977 and
1987, for instance, found that cormorants
were “considered to be problems at only 4-5%
of these facilities nationwide,” but 87% of the
catfish farmers in the Mississippi Delta
accused cormorants of eating 3% of their
income in 1988.
Since the Fish and Wildlife Service
began letting fish farmers shoot cormorants by
permit in 1986, one could get the idea that
studies were ordered until a study produced
results retroactively rationalizing the killing.
The only more recent data was the
average body count: 8,200 cormorants shot
per year, as reported by 2,261 previous depredation
permit holders. That’s 38 cormorants
per fish farmer per year for a decade.
With all that cormorant shooting,
Cox points out, one might expect the G u i d e
for Prospective Catfish Farmers published by
the Cooperative Extension Service at
Mississippi State University to take notice of
the purported predation problem. The guide
tells prospective catfish farmers everything
they need to know to calculate investment vs.
income, right down to factoring in the cost of
dip nets, waders, and boots.
But there isn’t a word about predation
of any sort.
The authors of the proposed depradation
order acknowledge on the second page
of the nine-page background statement that
“ponds [for farming catfish and other fish
species] can be fitted with physical barriers (or
exclusionary devices) such as wire or mesh
netting that prevent birds from landing.”
This relatively inexpensive, simple,
safe, almost 100% effective habitat modification
not only protects any fish pond against
cormorants, but also keeps out gulls, ospreys,
and/or pelicans. As a permanent fix, it pays
for itself, costing little or nothing to maintain.
But putting up netting doesn’t allow
good old boys to shoot birds.
The Guide for Prospective Catfish
Farmers says nothing about netting, either.
Ironically, Gary Jensen, aquaculture
program leader for the Extension Service
of the USDA, sent Proposed Depredation
Order for the Double-Crested Cormorant /
RIN 1018-AE11 out via the Internet as “an
example of the importance of research-based
information and the reference of scientific literature
in addressing cormorants and economic
losses in aquaculture.”
Science & swim-with
A record four gray whale calves
stranded along the California coast in January
1997, as the grays migrated north. No one
knows how or why they lost their mothers, but
harassment by boaters is one possibility.
Cornell Laboratory of Ornithology
bioaccoustics research program director
Chistopher Clark reported in 1995, after two
years of study, that humpback whales off the
north shore of Kauaii, Hawaii, change their
behavior when approached by boats and helicopters.
His findings were partially confirmed
by a 1996 study of whales in the Gulf of
Maine, done by students from the American
School for the Deaf in Hartford, Connecticut.
Studies of whales at Stellwagen
Bank, off Cape Cod, indicate that such
behavioral changes are perhaps actually caused
by the whales responding to the flight of fish
from the noise of whalewatching craft, and
suggest that the whales are less likely to
change behavior if no fish are nearby.
Whatever the reason, reports from
around the world agree that whalewatchers
now must go miles farther from shore to find
whales than they used to. The exceptions are
in estuaries, like the Gulf of St. Lawrence and
Puget Sound, where the whales can’t move
farther out unless they leave the region.
This summer 71 commercial whale
watching vessels plied Puget Sound, up from
44 in 1995. According to data kept by Ripon
College psychology professor Bob Otis, the
number of boats following each orca pod in
the San Juan Islands rose from 4.4 in 1990 to
26.2 last year, peaking at 107. That record
fell on July 20 this year, when 108 boats followed
one pod. The three resident pods have
among them only 98 whales.
“When I started doing this,” Otis
recently told M.L. Lyke of the Seattle P o s t –
I n t e l l i g e n c e r, “I thought I would spend two
years and prove that boats are a nuisance to
whales. But after seven years, I can’t find any
evidence of it. My gut feeling is that these
whales have habituatedt. This is the best place
to find salmon as runs are reduced, and the
whales are here because they’re hungry. No
matter how bad boat traffic is, it’s not as big
an issue as food.”
Thus, summarizes a 1995 NMFS
bulletin, Flipper’s Myth Proves Harmful, “In
the late 1980s, commercial boat tours in the
Carolinas, Florida, and Texas started feeding
wild dolphins. Although the practice was
banned following a 1993 ruling by the 5th
Circuit Court of Appeals, some recreational
boaters and commercial operators continue to
feed,” making dolphins “increasingly vulnerable
to interactions and collisions,” and “more
reliant on begging. The behavioral impact on
calves and juveniles is of particular concern,”
the bulletin adds, describing how of 17 calves
born to half a dozen frequently fed female dolphins
at the Monkey Mia resort in Western
Australia, only five survived infancy.
“Starvation due to lack of foraging and hunting
skills were cited among the causes of death,”
the bulletin explained. “In Hawaii, pelagic
dolphins frequent quiet coves and shallow
areas in order to rest during the day and avoid
predation. Some entrepreneurs have discovered
this, and bring tourists to these areas to
swim with the dolphins. Scientists are concerned
that the dolphins’ resting patterns are
being disrupted, which may lead to the dolphins
being displaced.”
Studies of the outcome of human
interactions with wild dolphins have produced
different results depending on location and
species. At Tangalooma Island, in Moreton
Bay, near Brisbane, Australia, University of
Queensland Ph.D. candidate Ilze Brieze found
in 1996 that wild bottlenose dolphins who
were fed at a resort otherwise behaved normally.
But those dolphins had not been fed as
long as the Monkey Mia pod. Australia in
April 1995 banned all dolphin feeding from
boats and all feeding of juvenile dolphins,
hoping to avert any more Monkey Mias.
“We would appreciate anything you
can do in your publication to spread the word
about this serious problem,” NMFS Office of
Protected Resources chief Ann Terbush told
ANIMAL PEOPLE on August 6. Her office
had on May 22 issued the bluntest yet of the
annual warnings that began with F l i p p e r ’ s
M y t h, entitled Feeding And Harassing
Dolphins Is Harmful And Illegal.
Yet enforcing the rules that
observers must keep vessels 300 feet from
whales and that marine mammals should not
be fed remains largely up to private efforts,
like the Soundwatch program directed by The
Whale Museum, of Friday Harbor,
Washington. The Soundwatchers deliver pamphlets
on proper whalewatching to boaters,
and photograph egregious offenses.
“Level B harassment,” where there
is no intent to harm a marine mammal, “is
very hard to prove under the 1994 amendments
to the Marine Mammal Protection Act,”
explained Terbush. “There are many tests to
define intent, and a good lawyer can get a
defendant off.” Thus prosecutions are rarely if
ever attempted at the federal level.
Florida law is reputedly tougher.
“The Fisheries Service has contracted
with the Florida Marine Patrol to provide
additional enforcement and visibility for dolphin-related
activities,” the May 22 bulletin
warned. “”In 1988 the Fisheries Service will
commit an additional $600,000 to fund six
enforcement officers who will concentrate on
protected species issues, including dolphin
feeding and harassment.”
Already, the Miami Herald reported
on August 16, “the state and NMFS are paying
Marine Patrol officers across the state $1
million to enforce the dolphin laws during offduty
On June 10, however, Dolphin
Freedom Foundation president Russ Rector
complained to Florida attorney general Robert
Butterworth that the Florida Marine Patrol
isn’t adequately protecting dolphins and the
public from each other, either. Rector sent
videotape to document his claim that during
four hours of observation from a rented boat
near the Panama City Inlet, he “witnessed at
least three incidents of feeding wild dolphins
from boats and personal watercraft,” plus “at
least 50 harassment violations,” in which
“People were chasing dolphins with jet skis.
Other boats ranging in size from sport fishing
boats to a large party boat were also chasing
the dolphins. At any one time in that small
area, there were 20 jet skiers, 20 assorted propeller-driven
boats, a half dozen swimmers
including children, and several dolphins going
from boat to boat to jet skier to swimmer, and
to top things off, a six-knot current. This illegal
and inappropriate behavior has been
ignored for the last few years and now is
beginning to spread,” Rector charged.
Rector identified “Swim With
Dolphins” boat trips led by Ashley Gorman of
Shell Island Cruises as including activities
barred by Florida code, which Terbush said
were legal at the federal level.
Whatever the case, said Rector,
“This entire situation is perpetuated by inaction
on the part of the Department of
Environmental Protection and Florida Marine
Patrol upper management. The FMP officers
in the field want to stop this illegal behavior
but are not allowed to write tickets.”
Rector drew support two months
later from Panama City contractor James
Barringer, who initially defended the Marine
Patrol, but told the Miami Herald that he
“finally realized I’ve been completely lied to.”
Marine Patrol law enforcement and
planning coordinator Frank Feliciano said his
agency had arrested 23 people for dolphinrelated
violations within the previous month.
Getting permission
No NMFS permits are required to
observe marine mammals from the proper distance,
nor to swim with wild dolphins if the
dolphins allow it. Approaching wild whales,
however, may be done only under a scientific
research permit. Research permits may be
issued only for valid scientific studies by qualified
researchers, may not be used for profitmaking
activities, and are not transferable.
Documents obtained by A N I M A L
P E O P L E and Friends of Animals under the
Freedom of Information Act show that Marsha
Green of Albright College in Reading,
Pennsylvania, on December 9, 1993 won scientific
research permit 883 to study humpback
whales off Hawaii for four years, expiring on
May 31, 1997. The permit, requiring annual
review and renewal, allowed Green to
approach “up to 1,200 humpback whales annually…closer
than 100 yards,” but forbade
underwater observation of neonate calves.
The permit also included standard
language explaining that the permittee would
have to obtain prior NMFS approval to make
“non-research-related use of photographs,
video, and film” taken during the project, and
noting that “one important criteria for assessing
the bona fides of scientific research is
whether research results are published.”
It cost Green just a $25 filing fee.
Over the next several years NMFS
Southwest Region protected species program
coordinator Eugene Nitta routinely allowed
Green to add vessels to an authorized fleet
eventually expanding to nine so-called
“research platforms”; to add 63 “research
assistants,” who were “authorized to record
data and serve as safety observers and boat
tenders”; and to add 38 “designated agents,”
purportedly “qualified to conduct the research
activities authorized by this permit without the
on-site supervision of the permit holder.”
Green attracted research assistants,
designated agents, and other participants in
her activities this year through a four-page catalog
headlined Ways to be with the Whales of
the World, with an insert advertising “Deep
Ecology Workshops.” In her introduction,
Green mentioned being a professor of psychobiology,
with a Ph.D., and stipulated that
“Currently, OMI’s research focuses on the
impact of human activities, such as vessel
traffic, on communication and reproduction in
the endangered humpback whale.”
That was the extent of the discussion
of science. Inside, the catalog described 11
“ecoadventures and research expeditions.” Six
descriptions of trips to the Bahamas, Mexico,
and Canada included passing mention of visits
to research sites, including Paul Spong’s
Orcalab in the Johnstone Straits of British
Columbia, but among them contained exactly
one sentence about actually doing research.
Of the U.S. expeditions, under
NMFS jurisdiction, only a two-paragraph
description of “Individual Research Internships”
emphasized research. “Hawaii’s
Cetacean Spectacle” promised participants
would “spend three days on the water with the
whales,” and “hope to see and swim with the
spiritual dolphins.” Participants in “Whales
and Dolphins in Hawaii” got to watch humpbacks
“splashing and blowing from the shoreline
and from boats,” as well as having “the
opportunity to swim and snorkel with the playful
spiritual dolphins,” and to learn to use
“breathwork to help you connect with the dolphins
emotionally and spiritually.”

Prices ranged from $775 to $1,850.
The OMI activities evidently overlapped
those of The Whaleman Foundation,
headed by photographer Jeff Pantukhoff, also
on the OMI board. The Whaleman Foundation
directors and advisors as of early August 1997,
according to the Whaleman web site, included
Green, Robert Wyland (described as “The
World’s Finest Ocean Artist” on both the
Whaleman web site and his own), filmmakers
Howard and Michele Hall, and Steve Juarez,
“owner of Hawaiian Rafting Adventures” as
well as one of Green’s “designated agents.”
Green was introduced on the
Whaleman site as “our permit holder,” though
her NMFS permit had expired. The Whaleman
Foundation described itself as “a nonprofit scientific
research and education organization.”
The web site promoted $5,000 ecotours,
four film projects, and Wyland art, at
prices from $50 for a print to $50,000 for an
original, but scarcely mentioned research.
There may also have been OMI and
Whaleman Foundation overlap with activities
of Robert Wyland’s own Wyland Foundation,
umbrella for his outdoor mural series.
In any event, it was the association
with Wyland that brought the OMI/Whaleman
operation to the notice of Terbush.
Nitta of NMFS authorized Wyland
as one of Green’s research assistants effective
April 6, 1996. As such, Wyland was not
allowed to be in the water with the whales.
Trouble started in December 1996,
when to help Wyland meet TV production
deadlines, Pantukhoff and Green sent him
video footage first and sought NMFS permission
later. They claimed the shortcut was
authorized by NMFS official Jim McAllum.
Meeting resistance, Green took the matter to
the NMFS head office. Wyland meanwhile
joined Pantukhoff off Maui for an additional
videotaping session in February 1997. Green
tried to rush approval of the release of that
footage, too. NMFS balked.
On April 9, Terbush advised Green,
“We cannot authorize the use of the images.
We are troubled that the activities depicted in
the video footage and photographs submitted
for our review do not appear to have a clear
association with the research as described in
your scientific research application and authorized
in your scientific research permit.”
Terbush demanded that Green
explain “how the footage and photographs
relate to the research objectives. Among other
things,” Terbush wrote, “we are concerned
that some of the photographs appear to depict
one of your designated agents [Wyland, probably
still just a research assistant according to
the correspondence record] ‘posing’ with a
humpback cow and calf,” allegedly disturbing
both, and violating the permit conditions.
On May 9, Green asserted innocence
of any wrongdoing and and lobbied for
future permission to “do a study on the impact
of swimmers on dolphins,” as well as further
study of whether boats cause stress to whales.
At deadline neither the Ocean
Mammal Institute, the Whaleman Foundation,
nor the Wyland Foundation had provided IRS
Form 990 in response to month-old direct
requests. Pantukhoff said that because the
Whaleman Foundation is barely one year old,
it has not yet filed Form 990 for any full year.
Thus the financial particulars of the three organizations
remain unknown.
ANIMAL PEOPLE was unable to
find any scientific publications pertaining to
cetacean research by Marsha Green, nor any
by the other principals of OMI, the Whaleman
Foundation, and the Wyland Foundation.
But we did find much history pertaining
to Wyland making bucks deluxe while
attracting publicity through associations with
other nonprofit marine mammal protection
organizations––among them the Sea Shepherd
Conservation Society, which sued him in 1986
for failing to share income from a joint project
and settled out of court for $7,000; the
Cousteau Society and Greenpeace Hawaii,
which eventually disavowed relations with
him; and the Free Willy campaign.
According to Hawaii Business,
Wyland Galleries, run by his brother Bill
Wyland, had 1995 revenues of $18 million.
Permitting whaling
There’s no doubt that the Department
of Commerce wants the Makah Tribal
Council, of Neah Bay, Washington, to
resume “traditional” coastal whaling next
spring, reasserting an 1855 treaty right for the
first time in more than 70 years. As well as
planning to represent the Makah application to
kill whales before the International Whaling
Commission in October, Commerce has
given the Makah $200,000 to help them make
their case, according to documents obtained
by the Sea Shepherd Conservation Society and
shared with ANIMAL PEOPLE.
Japan is one of America’s top trading
partners. Thus keeping Japan happy is one
of the chief jobs of the Commerce Department,
NMFS included. Makah whaling would make
Japanese whalers very happy, since they too
claim “traditional” whaling rights in coastal
waters. The IWC exempts indigenous peoples
from the global moratorium on whaling in
effect since 1986, if they can prove that a
whale hunt serves a nutritional and cultural
need and is part of an uninterrupted tradition.
The Makah proposal was withdrawn in 1996
because Congressional foes led by Jack
Metcalf (R-Washington), at request of the Sea
Shepherds, called those claims into question
enough to embarrass the Democrats in a
Congressional election year.
This, however, is not an election
year. The Makah proposal is back. Should it
gain IWC approval, assisted by vigorous
Japanese as well as American lobbying,
coastal Japanese whalers with a much shorter
interruption to their “tradition” of whalekilling
expect to find getting a similar IWC
okay much easier––especially if 13 British
Columbian tribal bands follow the Makah in
killing gray whales, as they have indicated
they might, encouraged by the largely
Japanese-funded, Vancouver-based World
Council of Whalers.
But even if the Makah have a treaty
right to kill whales, and even if they get the
IWC okay not only to kill whales but also to
engage in whaling-related commerce, permit
requirements apply. The Makah strategy is
evidently to shoot whales with machine guns,
then harpoon and tow them to shore by “traditional”
means, for “ceremonial” butchery.
There are not enough Makah now, though, to
eat much whale meat. Neither do the Makah
have the cold storage and/or canning facilities
to preserve whale meat for long.
The U.S. supports the Makah whaling
bid on the pretext that the treaty by which
the Makah reservation was created not only
guarantees whaling rights but also recognizes
the Makah as a sovereign nation, giving the
treaty the force of international law, not superseded
by Acts of Congress.
In a July 25 letter to former Fund for
Animals wildlife programs coordinator D.J.
Schubert, now with the Washington D.C. law
firm Meyer & Glitzenstein, NOAH undersecretary
and administrator D. James Baker
acknowledged U.S. responsibility for Makah
whaling to the extent of promising “an environmental
analysis of the authorization,” to be
“completed by the end of September 1997,”
about three weeks before the IWC is to consider
the Makah application.
But Baker also pointed out precedent
for exempting the Makah from the usual federal
rules. Section 14 of the 1994 Marine
Mammal Protection Act reauthorization stipulates
“Nothing in this Act…alters or is intended
to alter any treaty between the U.S. and one or
more Indian tribes.”
Added Baker, “With our approval,
the Makah Tribe currently manages a harvest
of seals and California sea lions,” a matter not
generally known despite salmon fishers’ frequent
complaints that the Makah get away
with shooting seals and sea lions while they
cannot––unless they get special permits first.
Makah vs. CITES
But the Makah are not members of
the Convention on International Trade in
Endangered Species, to which both the U.S.
and Japan belong. To engage in wildlife-related
commerce with either nation, the Makah
would be required as nonparties to CITES to
obtain a permit from the CITES Secretariat.
The U.S. Fish and Wildlife Service,
as the U.S. Office of Management Authority
recognized by CITES, would then have to
issue an import permit to the designated agent
for the receiving party on U.S. soil or water.
Also, the Fish & Wildlife Service
would have to issue an export permit before
the meat and/or products of whales could be
transshipped over either U.S. land or water to
any other foreign destination––where the
Office of Management Authority recognized
by CITES within the receiving nation would
have to issue an import permit.
None of that should be readily done,
since grey whales are on CITES Appendix I,
which normally prevents traffic in a species
except for protection, propagation, and scientific
research intended to help save the species.
The Makah could claim to be doing
research, like the Japanese “research” whalers
who killed 440 whales last winter, mostly
within the IWC-recognized Southern Oceans
Whale Sanctuary, or could claim the
Appendix I exemption granted to some traditional
native handicraft use of endangered
species body parts, but neither claim would
prevent USFWS from just saying no.
Even if grey whales are eventually
downlisted to CITES Appendix II, as Japan
failed to accomplish at the 1997 CITES triennial
meeting in Zimbabwe, or are downlisted
all the way to Appendix III, the import/export
permitting requirements would still apply,
To avoid that, Cox explains, the
Makah Tribal Council could pretend to export
whale meat and products to itself, for cold
storage and/or canning at a Japanese facility.
This could be done by claiming that all the
whale remains would come back eventually,
for exclusive tribal use. Passage through the
U.S., from Neah Bay to a designated Makaw
agent abroad, would officially be only incidental,
if the meat and other parts never left a
transporting vehicle en route from the reservation
to tribal custody abroad, and was never to
leave tribal custody while abroad.
In a June 12, 1997 letter to Clark
Lee Merriam of the Cousteau Society, NOAH
chief Baker gave his personal assurance that,
“The Makah Tribe’s request for a small allocation
from a non-endangered whale stock has
no commercial aspects. The Makah Tribal
Council has made a written commitment that
the meat and products of whales taken in the
proposed hunt will be used exclusively for
local consumption, [and] ceremonial purposes,
and will not be sold or offered for sale.”
That falls short of a commitment that
whale meat and products will not physically
leave the reservation in any form, for any purpose––the
only kind of commitment that could
preclude international commerce.
But even with such a stronger commitment,
if the Makah are allowed to operate
beyond ESA and CITES permit requirements,
there is no way to ensure that they keep it, nor
any way to do anything about it if they don’t.

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