Thrillcraft ban unlikely

By Timothy Hurley
Advertiser Maui County Bureau

The federal omnibus appropriations bill, signed by President Bush earlier this month, contains a provision that gives the state authority to enforce the Maui thrillcraft ban that was overturned by a federal judge in July.

But don't look for any immediate enforcement of the whale-season ban on the operation of parasail boats and personal watercraft in West and South Maui waters from Wednesday to May 15.

State officials say they still must go through some legal hoops before they can reverse U.S. District Judge Susan Mollway's permanent injunction invalidating the measure aimed at protecting humpback whales in their winter habitat off Maui.

With the ruling already in appeal, Deputy Attorney General Bill Wynhoff said he must go to the 9th Circuit Court of Appeals and ask the court to either overturn the ruling, based on the new federal law, or send the case back to Mollway and let her decide.

In any case, he said, no ruling allowing re-instatement of the ban would be expected for at least a month or two, if even then.

In the meantime, Maui's commercial thrillcraft and parasail companies are planning to continue operating past Wednesday. Such vessels would still be required to follow a federal law to stay at least 100 yards away from the whales.

Greg VanderLaan, owner of UFO Parasail, one of the companies that pursued the issue in court, said the handful of operators plan to stay in business only until early January and then voluntarily shut down until about late March. VanderLaan said the offer to suspend operations was made during settlement discussions in court and they still plan to honor the commitment.

VanderLaan, who runs three boats in West Maui waters, said he doesn't have a problem with not operating when whale activities are at their peak. The problem, he said, is that the original ban was unnecessarily long, extending during periods when there are relatively few humpback whales.

"Starting in April we're just sitting there for six weeks twiddling our thumbs, and there are no whales out there," he said.

But humpback whale researcher Mark Ferrari said that while it may not look like there are a lot of whales in December and in April and May, they are out there, particularly mothers and calves.

Ferrari, who has been conducting research in Maui waters for three decades, helped lobby for the ban in 1990 after he and his wife, Deborah Ferrari, found that mothers and calves were moving farther away from protected nearshore waters because of thrillcraft.

"This is the primary breeding area for the North Pacific population of humpback whales. Let's give them some space," he said.

Over the years, loopholes were challenged but the measure stood. Finally, the operators took the issue to court and won. Judge Mollway in July ruled that the ban violates federal law because states aren't allowed to act independently from the U.S. government to safeguard federally protected marine mammals.

In response to the ruling, U.S. Sen. Dan Inouye, D-Hawai'i, inserted a provision in the this year's appropriations bill giving Hawai'i the right to regulate vessels specifically for the protection of humpback whales. Inouye introduced the measure at the urging of state Sen. Roz Baker, D-5th (W. Maui, S. Maui), who sponsored the original measure as a member of the state House.

Naomi McIntosh, manager of the Hawaiian Islands Humpback Whale National Marine Sanctuary, said her agency supports the ban to minimize disturbances to the whales from vessels moving at high speeds and changing directions quickly.

"It's a very proactive measure," she said. "And you don't know the impact the noise has on the animals."

VanderLaan said that whatever happens to the law, he hopes it can be modified to acknowledge that parasail boats are not as bad for the whales as they're perceived. Newer parachute technology allows the boats to travel at slower speeds, 20 knots (23 miles per hour) or less, making them no greater threat to the humpbacks than fishing or whale-watch boats, he said.

In any case, VanderLaan said his company will take even greater precautions to avoid whales during the waxing and waning period of their migration. He said captains will monitor whale movements via radio communications with the whale-watch industry and vessels will not approach the humpbacks any closer than 500 yards. In addition, he said, they will provide two-way radio communications with parasail fliers, who will act as lookouts.

"Our goal is to give these great leviathans maximum berth," he said. "Now, it is truly about the whales."

Reach Timothy Hurley at thurley@honoluluadvertiser.com or (808) 244-4880.