Two women who run a small Native Hawaiian group dedicated to the protection of whales and other marine animals face a $5,000 fine for violating the federal Marine Mammal Protection Act during their response to a stranded whale in 2014.
But Kealoha Pisciotta and Roxane Stewart of Hilo-based Kai Palaoa contend they were merely following traditional Native Hawaiian cultural practice as they tried to save and comfort a dying melon-headed whale at Kawaihae, Hawaii island, before returning its remains to the ocean.
Both parties — the Kai Palaoa leaders and the National Oceanic and Atmospheric Administration — have agreed to engage in mediation before a U.S. administrative law judge. The parties will set a date for the mediation before the end of March.
Attorney Gary Zamber, representing Kai Palaoa, Pisciotta and Stewart, said he’s hoping the mediation process will help NOAA realize its obligation under the law to allow for Native Hawaiian traditional cultural practices.
A spokeswoman with NOAA, the federal agency responsible for enforcing the Marine Mammal Protection Act, declined to comment because it is an active case.
The violation occurred June 10-11, 2014, after Pisciotta and Stewart were asked by West Hawaii cultural practitioners to help respond to a stranded melon-headed whale at Kawaihae.
The melon-headed whale, a dolphin-size relative of the pygmy killer whale and pilot whale, is a species found in all the world’s tropical and subtropical oceans but is rarely seen because it lives in deep water far from shore.
Pisciotta said other stranding responders were on the scene when they arrived to find a sick whale barely hanging on to life. As the day grew later and it appeared nothing would help to revive the creature, everyone left except for Pisciotta and Stewart, who continued to pray and watch over the animal, which they called Wananalua, until it died early in the morning.
Pisciotta said neither NOAA nor its representatives were there to provide guidance on how to treat the animal, so they followed their own Hawaiian traditions.
Pisciotta said they guarded the small marine mammal in the sheltered waters of Kawaihae Harbor through the night. Then, after the sun came up, they transported the animal by boat a couple of miles offshore — far enough out to avoid attracting sharks. They anchored the animal with stones and conducted a burial ritual to help it “transition into the realm of the deities.”
“We were honored to care for Wananalua,” she said. “We made sure her body was returned.”
According to the group’s website, Kai Palaoa is composed of Native Hawaiian cultural practitioners called “to stand, serve, defend and protect what is at the core of our practice: our aina (land), our kai (ocean) and our akua (deities).”
“As Hawaiian cultural practitioners, we stand and take to heart our kuleana (responsibility) in caring for our distressed kanaloa (marine mammals). They are important in maintaining the natural balance and survival of our oceans,” the website says.
Pisciotta, founder of Kai Palaoa, is also president of Mauna Kea Anaina Hou and lead litigant in the Mauna Kea Hui lawsuit against the Thirty Meter Telescope.
Pisciotta and Stewart are members of NOAA’s Hilo Marine Mammal Stranding Network and have participated in other stranding responses. They have also undergone training on rescue and disentanglement, and previously helped to train volunteers on cultural practices.
Federal enforcement officials questioned Stewart about the stranding incident a few months after it occurred, and that prompted the women to hire a lawyer to write a letter of explanation to NOAA.
But the women said they didn’t know they were in trouble until about four months ago, when they were formally accused of an “illegal take and transport” of a marine mammal and assessed a $5,000 fine, Pisciotta said.
According to the Marine Mammal Protection Act, a “take” means to “capture, maim, injure or kill” any marine mammal or attempt to do so. The unauthorized transporting of a marine mammal is also illegal.
In Hawaii, Hawaii Pacific University is designated as the entity to respond to and sample dead stranded cetaceans, according to the NOAA Fisheries Pacific Islands Regional office website.
“All marine mammal parts are protected by federal law and should not be removed from the carcass unless authorized. It is important that the remains of a dead marine mammal are untouched as there may be an ongoing investigation to determine the cause of death,” the website says.
But traditional Hawaiian practice calls for returning the revered animal to the sea, Pisciotta said.
Zamber, the attorney, said he hopes the mediation leads to some kind of compromise that honors both Native Hawaiian practitioners and NOAA’s interests.
“My clients are not opposed to science,” he said. “They just want to assist with their marine mammal relatives.”
NOAA has no protocol for how to interact with Native practitioners, Zamber said.
“I know because I asked,” he said. But in state waters, under the trust responsibility of the Admission Act, the agency has an obligation to protect and uphold the traditional and customary rights of Native Hawaiians, he said.
In Alaska there are exceptions that give natives latitude to hunt and even kill whales.
“We just want to have a relationship with our ocean family and our akua, or deity,” Pisciotta said.
Pisciotta said that because of the burden of having to answer to the alleged violations and the potential of raising funds to pay a fine, Kai Palaoa is unable to hold the organization’s third annual Aloha Kanaloa Cultural Festival, which had been planned for this month in Hilo.
“We are being forced to defend ourselves, our organization and our culture against NOAA’s unjust accusations,” she said.
