Enforcing whale watching regulations Anecdotes and practical tips from enforcement officers at opposite ends of the world

Lessons learned and recommendations for the future

The stories from the field in Hawaii and Australia illustrate a few elements that can be applicable to enforcement of whale watching regulations throughout the world.

• Collaboration: Even in protected areas, effective enforcement requires good collaboration between multiple bodies, which may include local, state or federal authorities, park management bodies, and Coast Guard, Marine Law Enforcement or Navy personnel with the mandate to conduct surveillance and enforcement activities. The constellation of stakeholders may vary from one country to another, but the most important factor is to ensuring those who design regulations and the consequences for non-compliance consult closely during their development with those who will be responsible for monitoring compliance and issuing warnings, fines, suspensions, etc.
• Clear boundaries: Enforcing regulations is easier to do in well-defined areas, such as sanctuaries or national parks where clear regulations are in force, and there is a clear management structure that can commission enforcement officers with the mandate to conduct overt or covert surveillance and issue warnings, fines, or summons.  Keeping the boundaries of these areas well marked or easy to interpret is also important. This will help users (and enforcement officers) clearly understand when they are inside or outside of an area where regulations are applicable. For example, straight lines/boxes defining areas or from one headland to another that delineate the boundaries of a bay are easier to interpret than boundaries that follow a depth contour.  While the latter may make sense from an ecological perspective, it is very difficult for users to interpret.
• Evidence is critical:  Infractions must be well documented with proof of the vessel’s exact position and behaviour in relation to the whales/dolphins and the conditions that classify the interaction as an infraction (the angle or speed of approach, the distance to the whales, the presence of swimmers in the water, presence of other vessels before the non-compliant vessel arrived exceeding vessel limits, etc.). Where and when possible the entire interaction should be videoed from start to finish, with uninterrupted video capturing the vessel’s approach to the animal through to its departure. If positioned on the vessel, the person collecting evidence should include regular scans between the animals and specific aspects of the vessel, including the skipper at the helm (steering and throttle controls), the stern (angle of the outboards, prop wash and wake) and angle of the bow relevant to fixed markers. By using these as indicators during an interaction, proof can be obtained to demonstrate the deliberate and intentional operation of the vessel by the skipper and/or his/her carelessness with regard to the vessels status. In addition, any photos of the alleged violation should clearly depict the whale or dolphin species in question, and the animal’s activity before, during and after the approach. Photos, or preferably video, should be accompanied by a solid reliable witness statement, and if possible, other supporting evidence (time stamps on photos/videos, GPS positions, etc). A single photograph along with a witness statement is usually not enough to successfully prosecute a case of non-compliance. 
• Pick your battles: Even with solid lines of evidence, including video, GPS locations and witness statements, usually only the most egregious infractions can be prosecuted.  Evidence from photos or video is unlikely to prove whether a vessel was 75m or 100m from an animal, but it can prove that a vessel was within only 10 or 20m of an animal.  Those who are drafting regulations should bear this in mind. Less obvious infractions can lead to warnings, but are unlikely to be proven in court if heavy penalties are involved.
• Include Expert Opinion:  In some cases, including an expert opinion from a reputable whale or dolphin scientist who can clearly explain the impact of infractions on the animal in question may help a court to understand why infractions are important to enforce, and why a penalty is merited.
• Enforcement capacity: While some enforcement and prosecution can successfully be carried out with opportunistically collected evidence from third parties, the most effective enforcement is conducted by officers with a thorough understanding of the regulations in effect, and the means to collect evidence on both recreational vessels and commercial operators’ behaviour/compliance. This also requires them to have a solid understanding of both whale/dolphin behaviour and basic seamanship.  Without this knowledge it is difficult to distinguish interactions that were clearly intentional breaches of regulations by the vessel captain and situations that were difficult to avoid because whales or dolphins reacted unexpectedly or approached the vessel, or sea conditions required certain actions by the skipper to ensure the safety of people and the vessel.
• Apply regulations to all marine users: Issuing fines or prosecutions to whale watch operators is generally easier to do than it is for recreational boaters and/or fishing vessels.  Often regulations are written with commercial whale watching operations in mind, and adhering to regulations is tied to the conditions of their permits.  However the consequence of disturbance from recreational boaters or fishing vessels can be just as severe, and commercial whale watching operators and enforcement officers alike often feel frustrated that these vessels are not held to the same standard.  In some settings marked enforcement vessels or NGOs have been successful in raising awareness of regulations among recreational boaters by approaching them and reminding them of guidelines.
• Prevention: Preventing breaches/infractions from occurring in the first place is, of course, better for the whales and dolphins being watched, as well as the people watching them. Managers can incorporate and implement a multi-pronged and on-going education strategy to support enforcement operations. This should target both recreational and commercial operators, during peak periods. Some strategies include: regular on water patrols; marine radio broadcasts throughout the season; presentations to fishing and boating groups/shows, etc; pre-season briefings with commercial operators; including regulations as part of recreational vessel licencing requirements; electronic and print media articles; radio and television interviews.  All of these actions can be undertaken with limited budget.