Subject: Case Study: pilot whale/human interaction case - Part 2 (fwd)

Michael Williamson (pita@whale.simmons.edu)
Thu, 9 May 1996 15:37:41 -0400 (EDT)

---------- Forwarded message ----------
Date: Wed, 8 May 1996 18:59:52 +0000
From: Jim Scarff <jscarff@igc.apc.org>
To: Multiple recipients of list MARMAM <MARMAM@UVVM.BITNET>
Subject: Re: pilot whale/human interaction case - Part 2

We pick up the story at the evidence:

1. WHAT IS NORMAL BEHAVIOR?

The ALJ had found that Tepley's "chase" of the pilot whales was the
strongest argument for harassment. This behavior apparently was
evidence of a change from normal behavior indicative of disturbance
by the chasing Zodiac. The ALJ believed Dr. Ridgeway that porpoising
in pilot whales was not normal behavior.

However, the judge found that the pilot whales appeared to have been
porpoising when they were first spotted from a distance, and some
eventually stopped porpoising when approached by Tepley, while others
continued this behavior in the area.  Tepley's witnesses appear to
have testified that pilot whales did porpoise in the absence of human
harassment. In any case, the judge found that the goverment had not
shown that Tepley CAUSED the porpoising since the animals were doing
that when first spotted from a distance.  Note that the government
conceded that if Tepley had merely been pursuing the pilot whales,
this would be insufficient to support a finding of harassment
(footnote 6).

The judge also did not buy Dr. Ridgeway's testimony that the pilot
whales stopped porpoising because of fatigue from being chased. She
called this "speculative, at best."  The ALJ had compared Tepley's
actions to a "drive fishery" where dolphins are herded by banging
pipes under water. The judge cited the whales' approach to the boat
as being inconsistent with flight and harassment that might meet the
standard of the Hayashi decision.

2. THE NOISY CAMERA

The ALJ had relied heavily on the noise of Tepley's camera as
bothering the whales. The judge threw this out, saying there was no
evidence on the record that Tepley's camera made any noise.  The
only material in the record appears to have been Dr. Ridgeway's
testimony that the camera probably made noise. The judge went on in
"dicta" to state that there is nothing in the law which finds that
"noise from a camera alone constitutes harassment". "If Congress
wanted to enact a regulation that prohibits filming of animals in
the wild, or that establishes distance requirements, it easily could
have done so."

3. THE WHALE "ATTACK?"

Finally, the question was reached as to how to interpret the pilot
whale's grabbing of Lisa Costello's leg. The judge found the evidence
that this was an attack inconclusive. She stated:

"More importantly, it would be quite a difficult endeavor for any
trier of fact to determine what significance should be attributed to
the actions of whales. To quote the government, such 'anthropomorphic
rationalization' cannot be the basis for the severe penalty that was
imposed here; yet the ALJ's findings centered on his evaluation of
the 'whales' annoyance at the humans' presence.'"

4. BOTTOM LINE

The Court in Hayashi found that firing bullets in the area of
porpoises to chase them off fishing lines did not constitute
harassment sufficient to be  a criminal offense under the MMPA.  The
judge here said if that ain't a crime, this certainly wasn't,
particularly in the absence of any direct threat to the pilot
whales.

CAVEATS:  Read the case. It's short and clear. I have no involvement
with either side, and know very little about pilot whale behavior. I
have not reviewed any of the testimony (I saw the TV show), nor any
of the legal briefs, nor talked to any of the parties. The above
summary is derived entirely from the published Federal Court opinion.
To the extent I have mischaracterized the testimony of Dr. Ridgeway
or any others, I apologize, and invite their clarification
---------------------
Jim Scarff
1807 M.L. King Way #A
Berkeley, CA 94709
(415) 703-1440 (w)
e-mail: jscarff@igc.apc.org
Home Page: http://ourworld.compuserve.com/homepages/Jim_Scarff/