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06/13/2007: "Legal Waters Found Deep For Orca Protection"

(Prosecutor presents draft ordinance to County Council -Slide shows a “No Go” zone when near whales)

The county Council reviewed draft two of the proposed Ordinance regulating the operation of vessels in proximity to the Southern Resident Killer Whale”, and were told by Prosecuting attorney Randy Gaylord that there are difficulties and potential liabilities in adopting regulations that would replace existing voluntary guidelines.

The key word here is “voluntary”. It is one thing to ask, but quite another to demand. The problem is compounded given existing federal, state and international laws that little San Juan County has to understand and take into consideration as they try and draft an ordinance that will not conflict with the existing body of controls and agreements that relate to vessels in San Juan County waters.

As he did in the first presentation of the draft, Gaylord once again used a Power Point presentation as a basis for outlining the history and current status of laws, regulations and international treaties that may have the potential to come into conflict, if not limit, any regulations the County may enact to control movement on the waters around San Juan County.

If SJ County was not so close to an international boarder, and was not surrounded by waters that have been subject to international treaties, and subject to maritime laws -some of which go back to a treaty with Great Britain in 1846- it might be a bit easier for the Council to regulate vessels in San Juan waters.


Gaylord went through a list of possible conflicts with existing Federal laws, noting the Marine Mammal Protection Act; an “Agreement for a Cooperative Vessel Traffic Management System of the Juan de Fuca Region”; and even a United Nations Convention on the Law of the Sea issues, as examples that need to be looked at for possible conflicts with the SJC draft ordinance.

As for State regulations, there are state wildlife laws that could overlap SJC regulations. And, if that is not enough to take into consideration, there have also been court cases, including a Supreme Court case (U.S. v. Locke [Intertanko Case]) that San Juan County was a party to. Gaylord had a loose-leaf binder that was close to six inches thick that contained some of his research on the subject.

After the Gaylord presentation the Council discussed how to proceed. Given the daunting presentation it was not surprising that the Council started asking questions of Gaylord about other ways of protecting the Orca from negative impacts of boats. Councilman Rich Peterson asked if it is true the State is already working on regulations, and could the County wait for the State to solve the problem?. Gaylord did not give a direct answer, other than to acknowledge that there was talk of new regulations being drafted. Councilman Ranker indicated that this could take a long time to happen, if at all; and the Friends of the San Juans’ attorney, Amy trainer, simply shook her head “No”.

And as always in the matter of drafting regulations, the subject of money to enforce new regulations finally came to the surface when Sheriff Bill Cumming was asked to speak on the subject of enforcement. The council pushed at the subject a bit, but the hard questions of how on a day-today basis could these regulations be enforced, and by whom, did not seem to go in any particular direction.

Gaylord will return with a third draft for further review and discussion, but based on the discussion so far, it appears the Council does have an interest in passing “something”, even if it ends op being along the lines of a speed limit law, such as: there is a law against speeding, and most people follow it because they know it exists, but there is not going to be a cop on each and every road watching for violators. But if they do see you speeding….