Turtles and Tourism: Where the Endangered Species Act Ends and Community Activism Begins

Article excerpt

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.

  I. 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.

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