The Whalegate Scandal: State Lands Commission Finds MLPA Habitat Data Acquired Illegally

The Whalegate Scandal: State Lands Commission Finds MLPA Habitat Data Acquired Illegally

by Dan Bacher

In the latest episode in the long, sordid saga of Governor Arnold Schwarzenegger's widely-contested Marine Life Protection Act (MLPA) process, the California State Lands Commission (SLC) at its meeting in San Diego on December 17 voted not to revoke the permit for Fugro Pelagos research vessel activity on the condition that the company abide by the terms of the permit in the future. Commission staff found that Fugro Pelagos violated the terms of its permit when it struck and killed a blue whale in October, 2009 off Fort Bragg when its contract vessel was mapping the sea floor for the MLPA Initiative.

The finding that the MLPA habitat data was acquired illegally comes at a time when a broad coalition of North Coast environmentalists, fishermen, Native Americans and seaweed harvesters is criticizing the MLPA process for being rife with conflicts of interests, mission creep, environmental injustice and corruption of the democratic process.

Staff found that the company:
-Did not notify the State Lands Commission prior to its survey activity
-Did not have marine wildlife observers on board.

Commission staff cited California Coastal Conservancy Executive Director Sam Schuchat's belief that the killing of the whale was "an accident and even if the observers were on board, the whale would have been killed." No supporting evidence was provided, according to Jim Martin, West Coast Regional Director of the Recreational Fishing Alliance.

Staff recommended that the permit be revoked until Jan. 17, 2010 and then returned - if the company pays for SLC costs of investigating the incident and preparing the report. The cost is 70 staff hours amounting to $13,000.

David Millar, President of Fugro Pelagos, testified that the company did not violate its permit. He told the Commission that the company felt "bad about the large mammal being killed."

Millar said his company did not ignore the conditions of its permit - they argued they do not believe their operations were subject to the permit.

The Commission offered a deal to the company that it could keep its permit if it followed the staff's recommendations - payment of costs to the SLC to investigate the incident, and to have observers on board when operating and to notify SLC before conducting operations, according to Martin.

Mr. Millar objected to the conditions only applying to his company, putting him in a competitive disadvantage. He asked that other companies (8 approximately) be required to follow the same terms. The Commissioners said they would look into that issue, but meanwhile, did Miller agree to the terms or did he want his permit revoked? Miller agreed to the terms.

Steve Sullivan, owner of a company that does similar work on hydrographic surveys, called on Fugro Pelagos to reimburse the state for $16 million in public funding for the joint NOAA/California Coastal Conservancy project to map northern California's sea floor in state waters. Sullivan stated that the habitat data collected for the Marine Life Protection Act Initiative was obtained illegally, according to the findings of the State Lands Commission, and questioned the data being used in the MLPA process.

After the hearing, Sullivan praised the Commission's decision regarding Fugro's illegal surveys conducted for MLPA designation - and urged the OPC to delay designation of the Marine Protected Areas until the "doubts associated with the legitimacy of the survey data" are resolved.

"I am very pleased that the State Lands Commission has finally required the multi-billion dollar international firm, Fugro, to abide by the same regulations to protect marine mammals that us small California survey companies have complied with for years," said Sullivan. "At their meeting on 17 December, the State Lands Commission disclosed that Fugro and a new permit applicant, the California State University at Monterey Bay (CSUMB), have for years been conducting marine surveys illegally, without compliance with regulations to protect marine mammals.

"The illegal surveys conducted for Marine Life Protected Area (MLPA) designation by Fugro and CSUMB, which ultimately resulted in the death of a blue whale, have severely tarnished the image of the Ocean Protection Council (OPC)," Sullivan noted. "The State cannot be allowed to use illegally-obtained survey data to designate Marine Protected Areas (MPAs) that restrict the rights of fishermen and Native Americans. Imposing severe restrictions on the use of our State’s marine resources requires the full faith and confidence of the public; unfortunately the actions of the OPC and its survey contractors have shaken that trust."

Sullivan said the illegal surveys conducted for the OPC by Professor Rikk Kvitek of the CSUMB "cast a pall" over the legitimacy of the MLPA-designations, similar to the concerns about the legitimacy of diesel emission regulations after the California Air Resources Board ignored warnings that their statistician, Hien Tran, had mis-represented his credentials (See Dan Waters "Cover-up casts doubt on California Air Resources Board policy" - http://www.mercurynews.com/ci_13909471?nclick_check=1).

"The OPC ignored warnings issued years ago that Rikk Kvitek, the primary scientist associated with designating MLPAs, was conducting illegal surveys without the required State-permit," stated Sullivan. "The OPC was publicly warned only 32 days before the blue whale was killed that their survey contractor, Fugro, was not in compliance with State regulations that protect marine mammals. The OPC has failed its charter to protect California’s marine resources."

Sullivan said the state should demand to be reimbursed by Fugro and the CSUMB for the $16 million of funding they received for conducting the "illegal surveys."

On October 18, a vessel under contract for mapping sea floor habitat data for the controversial MLPA process in California struck and killed a rare female blue whale off the coast south of Fort Bragg in Mendocino County. The vessel, "Pacific Star," ceased operations after the whale strike. The killing of the whale outraged local environmentalists and fishermen now fighting the privately-funded MLPA process.

"Local fishermen are already pointing out data gaps in the MLPA science process as they struggle to meet a February 1, 2010 deadline for initial proposals for marine protected areas on the north coast," said Jim Martin. "Fishermen are wondering: if Fugro Pelagos was cutting corners by illegally failing to pay for marine wildlife observers, what other corners did they cut in obtaining the habitat data? The viability of sustainable fisheries on the north coast depend on the accuracy and integrity of this data."

Increasing numbers of individuals and organizations from a variety of political perspectives have criticized the MLPA initiative for being an unjust process, overseen by oil industry, real estate, marina development and other corporate interests, that has no respect for the rights of sustainable fishermen, seaweed harvesters and Indian Tribal members.

The National Congress of American Indians, at their annual session from October 11-16 in Palm Springs, passed a strongly worded resolution criticizing Schwarzenegger's MLPA process for failing to recognize the subsistence, ceremonial and cultural rights of California Indian Tribes. "While the tribes support the State's goal of developing marine protection, they are concerned that the State's MLPA process does not address their sovereign standing or interests," according to the resolution.

The killing of a rare blue whale by a boat, contracted by the Ocean Protection Council, to conduct what turned out to be an illegally conducted mapping survey of the seafloor for the MLPA process, an initiative supposedly designed to "protect" marine life, could only happen in Schwarzenegger's California. This bizarre incident is akin to the fire department burning the firehouse down!

The state's initial reaction to the death of the whale didn't exactly build confidence in the "leadership" of the Ocean Protection Council or the California Coastal Conservancy. In November, California Coastal Conservancy Executive Director Sam Schuchat tried to make light of "Whalegate" in his article, "Call Me Ahab," published on the Ocean Protection Council website.

"As you can imagine, we all feel pretty bad about it," Schuchat stated in his piece. "After all, we are the Ocean Protection Council, not the Ocean Destruction Council. To be fair, no one from the Council was on board the ship. In fact, we weren’t even paying them...Still, I feel like I just ran over my neighbor’s cat, except that I can’t run down to the pound and get a replacement."

The article (http://www.opc.ca.gov/2009/11/call-me-ahab/) has been taken down, probably due to the groundswell of anger from local environmentalists and fishermen who read his piece.