Turtles and tourism: where the Endangered Species Act ends and community activism begins.

• Author: Nichols, Kamaile A.

ABSTRACT

Visitors and residents of Hawai'i alike can take a walk along Laniakea Beach and enjoy a rare spectacle: green sea turtles sunbathing on the sand. Over the past six years, human-turtle encounters have grown more frequent and potentially problematic for the well-being of the threatened turtle species. This article addresses the ability of the Endangered Species Act, and Hawai'i state laws, to protect green sea turtles from "harm" or "harassment" arising from chronic, close-proximity wildlife viewing. The article concludes that, although the ESA is not suited to prevent cumulative impacts to the turtles from human beach-going activity, there is ample room in state regulations to develop site-specific turtle protection programs.

1. INTRODUCTION II. THE SITUATION AT LANIAKEA: TURTLES, TOURISTS, AND STATUTES A. Background Information on the Pacific Green Sea Turtle B. Overview of the ESA and Federal Agencies Involved 1. The ESA 2. NOAA: The Lead Federal Agency C. Overview of Turtle Protection at the State Level D. Turtles as Tourist Attractions: Protection Versus Economic Exploitation E. Human-Turtle Interactions at Laniakea III. THE ESA AND LOW IMPACT INTERACTIONS A. Vague Meaning of "Harm" and "Harass" Hinders Agency Enforcement Against Low Impact Interactions 1. Interruption of Resting Behavior 2. Past Takings May Be an Indication of Future Takings 3. Continual Human Presence May Amount to Harm by Habitat Modification B. State Agencies, Tourism, and Incidental Take Permits 1. Private Entity Liability and ITPs 2. State Agency Liability and ITPs C. Expansion of Federal Take Provisions: An ESA "Approach Rule" IV. BEYOND THE ESA: ALTERNATIVE PROTECTION STRATEGIES A. Community-Based Volunteer Protection B. Opportunities .for State Regulation 1. Statutory Amendment 2. Statewide Wildlife Conservation Strategy.. 3. Florida's State-permitted Turtle Tours: A Model for a Different Approach V. CONCLUSION I.

INTRODUCTION

"Look! Another one!" On a sunny Friday afternoon, twenty-plus thrilled turtle watchers strain their eyes and point their cameras at the dark shape bobbing up and down in the waves, and a turtle is met with enthusiastic cries as a gentle wave delivers it onto the beach. There are five turtles on the beach now, and the largest one weighs approximately 250 pounds. Instantly, two individuals wearing official-looking name tags move to the front of the crowd and begin laying down a long, red rope to form a large loop around the turtle. These two individuals are from a small but dedicated group of volunteers who, armed with thin red ropes and signs, are the only boundary between the turtles and dozens of eager beachgoers. (1)

The Pacific Green Sea Turtle is a common sight at Laniakea Beach on O'ahu's North Shore. The green turtle is also a threatened species, and is protected by the Endangered Species Act ("USA"). (2) This paper discusses the ability, if any, of the USA and corresponding Hawai'i state laws to protect the green turtles from potentially dangerous situations arising from chronic, close-proximity wildlife viewing. This issue turns on whether crowding and touching rises to the level of "harm" or "harass" under the Section 9 "take" provision of the USA. (3) The pivotal question is: does the USA apply to low impact interactions between humans and turtles? The situation at Laniakea reveals the limits of the protection provided by the USA. This article considers whether there is a need to reform the USA, or whether the Laniakea situation demonstrates an appropriate limitation to federal statutory oversight that allows community activism to pick up where the USA leaves off.

II.

THE SITUATION AT LANIAKEA: TURTLES, TOURISTS, AND STATUTES

The story about the Laniakea turtles involves government agencies with conflicting mandates, well-intentioned but uninformed beachgoers, anxious local residents, and an overarching threat to a species whose essential life behaviors are not entirely understood.

1. Background Information on the Pacific Green Sea Turtle The Pacific Green Sea Turtle, chelonia mydas, is listed as "threatened" across nearly its entire habitat range, and throughout Hawai'i. (4) Under the USA, a threatened species is one which is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." (5) The Pacific Green Sea Turtle was listed as threatened on July 28, 1978. (6) The "threatened" designation is world-wide for the entire species, and the turtles that feed and reside mainly in Hawai'i are not officially listed as a distinct population. (7) Therefore, Hawai'i's green turtles are legally indistinguishable from most other green turtle populations around the world. Due to protective laws and conservation efforts put into place following the turtle's "threatened" designation, scientists have recorded a significant upward trend in population numbers over the past twenty-five years. (8) This upward trend directly relates to the increased number of human-turtle interactions at Laniakea. (9)

   Turtles were first observed "hauling out" of the ocean to bask in the sun at Laniakea in 1999. (10) The turtles frequent the waters offshore to feed on the seaweed growing on the rocks, and then come ashore to bask and sleep. (11) After a 2000 news article described this new turtle phenomena, the secret was out, and each year brought more visitors by car and tour bus to observe the turtles. (12) In response to increasing numbers of complaints about the amount of touching and interaction between wildlife viewers and the turtles, the National Oceanic and Atmospheric Administration ("NOAA"), with the help of concerned citizens, launched a "Show Turtles Aloha" education program in 2005. (13)

   The on-site education and awareness program is facilitated by NOAA but conducted by volunteers. (14) When a visitor arrives at the beach with the hope of observing a turtle, he or she cannot possibly ignore the large banners warning against getting too close, the red ropes placed around each turtle marking recommended safe distances, and the volunteers handing out educational flyers. (15) One fact sheet provides basic biological information about the turtles, about the ESA, and about the special situation at Laniakea. A second "Viewing Guidelines" handout recommends that viewers: not feed, touch, or attempt to ride the turtles; observe the turtles from a distance; and allow the turtles a clear escape route to water. (16) With the tour buses clearly in mind, the handouts are available in both English and Japanese. (17)

2. Overview of the ESA and Federal Agencies Involved

   1. The ESA

      The ESA was enacted in 1973 to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species and threatened species." (18) The intent of Congress in enacting the statute was to "halt and reverse the trend toward species extinction, whatever the cost." (19)

      The ESA covers a wide breadth of prohibited activities that are of potential relevance to the situation at Laniakea. These are codified in Section 4 (designation of critical habitat and species recovery plan), Section 7 (federal action provisions), Section 9 ("take" provisions), and Section 10 ("incidental take" exceptions) of the ESA. (20) Both civil and criminal penalties can be rendered upon a violation of the ESA. (21) This paper focuses on Section 9 and Section 10 takings.

      Section 922 of the ESA protects the Laniakea turtles from a "take." The term "take" means "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." (23) Although the Section 9 provisions were written in reference to endangered species only, these protections for endangered species have been administratively extended to threatened species, and thus the Laniakea turtles are protected by Section 9. (24) Whereas most of the "take" actions are fairly straightforward, what constitutes "harass" and "harm" is not clear. These vague terms are nonetheless directly relevant to wildlife viewing at Laniakea.

      Section 10 lists various exceptions to the general rules of the ESA, the most relevant exception being that for "incidental take[s]." A person, state agency, or organization can be issued a permit that grants the right to "take" a turtle in limited circumstances. (25)

   2. NOAA: The Lead Federal Agency

      The ESA is administered at the federal level by both the Fish and Wildlife Service ("FWS") (under the Secretary of the Interior) and by NOAA (under the Secretary of Commerce).26 Generally, FWS regulates land species and NOAA handles marine species. Although the Laniakea turtles are on land during many of the interactions with beachgoers, for practical reasons NOAA's National Marine Fisheries Service and Pacific Island Regional Office lead the federal response at Laniakea. (27)

3. Overview of Turtle Protection at the State Level

   Any species that is listed as threatened or endangered on the ESA list is deemed to be threatened or endangered in Hawai'i. (28) Furthermore, Section 6 of the ESA provides that the federal agencies shall cooperate, to the extent practicable, with states that establish their own adequate conservation programs. (29)

   Hawaii's statutory protection for threatened and endangered species is codified in Hawai'i Revised Statutes Chapter 195D "Conservation of Aquatic Life, Wildlife, and Land Plants." (30) The state code, in many ways, mirrors the ESA. Section 3(c) of the code is the corollary to ESA's Section 9 prohibition against "taking." (31) A threatened species is defined as, in pertinent part, "any species of aquatic life ... which appears likely, within the foreseeable future, to become endangered...." (32) A turtle is classified as "aquatic life" under the statute. (33) The Department of Land and Natural Resources ("DLNR") has the authority to...